Haque v Secretary, Department of Social Services

1. The appeal is dismissed as incompetent.
2. The appellant is to pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCELWAINE J: 1 My task is to determine a notice of objection to competency of an appeal filed by Dr Zahidul Haque from the orders made by Wheelahan J on 28 March 2014: Haque v Secretary Department of Social Services (Centrelink) [2024] FCA 295 (PJ). His Honour, for clear and comprehensive reasons, dismissed the appellant's application for judicial review of an alleged decision in respect of purported applications for certain pensions and payments under the Social Security Act 1991 (Cth) (SSA). It has been agreed that my determination will proceed on the papers. 2 Although the appeal is to the Full Court, the effect of s 25B(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) is that a single judge may give summary judgment in an appeal, which includes the dismissal of incompetent appeals: Ali v Chandler Macleod Group Ltd [2016] FCA 1234 at [25], Siopis J. 3 The appellant, who is a litigant in person, filed his notice of appeal on 18 April 2024. There are four purported grounds that bear no relationship to what the primary judge decided, are confused and confusing and as such it would not be productive to set them out. 4 On 2 May 2024, the respondent filed a notice of objection to competency seeking to have the appeal dismissed pursuant to r 36.72 of the Federal Court of Australia Rules 2011 (Cth). The short point is that the primary judge at PJ [73], in giving his fifth reason for dismissal of the review application, concluded that a grant of relief would be futile. The appellant does not seek to challenge that finding and, in any event, the respondent contends that there is no realistic prospect of such a challenge succeeding. The respondent is unquestionably correct. 5 For the following brief reasons, the appeal is incompetent and must be dismissed. 6 The applicant claimed to have made an application by letter dated 30 September 2022 (the application letter) for portable pension benefits pursuant to the SSA for a proposed period of absence from Australia commencing on 29 November 2022. The primary judge summarised the assertions made by the applicant in the application letter at PJ [5], which I reproduce in part: (1) The applicant stated that he migrated to Australia in July 1992, and that from time to time after 27 July 1992 he received Centrelink benefits, and that he had been receiving income support payments continuously since 11 September 2009. … (3) The applicant stated that his cardiologist had referred him to the Alfred Heart Centre on 12 July 2012 for an angioplasty… and that despite the lapse of 70 days he had not received an appointment form the hospital. The applicant stated that he had therefore decided to obtain "life-saving treatments" from overseas. The applicant annexed to his letter a travel document evidencing a booking on a flight departing Melbourne for Bangkok on 29 November 2022. (4) The applicant claimed he was suffering from financial hardship… had been psychiatrically impaired since 2009, and had been unfit for work for seven to eight years. The applicant claimed that he had held a disability support pension card due to psychiatric impairment from 21 August 2014 and that he was currently holding such a card… (5) The applicant referred to his financial commitments… In light of these commitments, the applicant sought continuation of payments during the period of temporary absence overseas for at least three months from 29 November 2022. 7 The appellant, by the application letter, sought three types of payments in the alternative which the primary judge set out at PJ [6]: (1) First, the appellant sought an extension of the portability period pursuant to s 1218D of the Social Security Act, which has as its heading, "Extension of person's portability period - life saving medical treatment overseas". (2) In the alternative, the applicant sought a special needs age pension while he was temporarily absent from Australia. In relation to this benefit, the applicant cited in his letter s 772 of the Social Security Act. (3) In the further alternative, the applicant claims in the letter that he qualified for a special needs disability support pension, citing ss 94 and 773 of the Social Security Act. In this context, the applicant stated in the letter that he first received a disability support pension card due to psychotic impairment from 21 August 2014, and that he currently held such a card. 8 On 29 November 2022, the appellant departed Australia and returned on 31 March 2023. Upon his departure, the agency known as Centrelink issued a notice of suspension of his Jobseeker payment. The primary judge recorded that it was common ground that his Honour should infer that the notice of suspension of the payment was generated by a computer program (PJ [8]). 9 The applicant sought judicial review by originating application accepted for filing in this Court on 27 June 2023. Centrelink had not responded to the application letter to that point in time, and did not respond prior to the hearing before the primary judge. On 25 August 2023, the primary judge ordered the respondent to file and serve a document titled "Response to the Applicant's Application for Judicial Review". In that document, filed on 21 September 2023, the respondent acknowledged the failure to respond to the application letter and stated inter alia: a. The appellant was not eligible for receipt of the portable payments or extension to portability sought in the application letter; and b. The request had been actioned, and in a decision dated 19 September 2023, it was determined that the appellant was not eligible to have his Jobseeker payment made portable on his departure from Australia and in any event, portability of the JobSeeker payment being limited to a maximum of six weeks. 10 On 28 September 2023, the appellant sought and obtained leave to file an amended application for judicial review, which he did on 12 October 2023. That application sought review of the decision of 19 September 2023. 11 Putting aside the other misconceived contentions that the appellant advanced before the primary judge (each of which his Honour found to be without merit), at PJ [73] - [74] he dealt with the futility of the appellant's application as follows: The relief under the ADJR Act which the applicant seeks is directed to ordering that the Secretary make a determination that the applicant was eligible for portable pensions under s 772 or s 773, or a portability period for an "Australian residence disability support portable pension" under s 1212 or s 1218D of the Social Security Act, or an extended portability period for one or more payments under s 1218D. The relief sought would be futile for the following reasons - (a) the applicant has disclaimed any contention that his jobseeker payment remained payable on the basis that he was obtaining "eligible medical treatment" overseas; (b) the applicant did not make a valid claim for a disability support pension, or a special needs age pension, or a special needs disability support pension; (c) even if the applicant did make any such claim, then there was a deemed refusal of the claim in respect of which the applicant did not seek review by the Secretary; (d) to the extent that the applicant seeks relief in support of a claim for a special needs age pension under s 772, it is clear that the applicant would not qualify for that pension for reasons including that he has resided in Australia since 7 May 1973, and has yet to turn 65, being two of the cumulative conditions of s 772 that must be met: see Haque v Secretary, Department of Social Security [2023] FCA 474 at [34], [43]-[44] (Snaden J); (e) it is clear that the applicant would not qualify for a special needs disability pension under s 773 because he has resided in Australia since 7 May 1973; and (f) there is no realistic prospect that the Secretary could be satisfied that financial assistance under the Medical Treatment Overseas Program was payable to the applicant, and therefore no realistic prospect that s 1218D would be engaged even in relation to his jobseeker payment. For completeness, Mr Brown on behalf of the Secretary did not submit that relief should be refused on the discretionary ground that the applicant had failed to pursue rights of merits-based review under the Administration Act. Had such a submission been made, and had it been necessary to consider that submission, then it may have had some force. The Court has a discretion to refuse relief on the ground that there were other remedies available to the applicant that would likely have involved a full review, including a review by the Secretary under s 129 of the Administration Act and, subsequently, a review by the Administrative Appeals Tribunal pursuant to s 142 of the Administration Act: see ADJR Act ss 10(2)(a), 16. Generally speaking, unsuccessful claimants for payments under the Social Security Act should pursue these remedies rather than approaching the Court seeking judicial review. 12 No ground in the appellant's notice of appeal, no matter how generously one may construe those grounds in his favour, challenges that reasoning and those findings. The appellant's written submissions upon this application filed on 17 July 2024, fail to grapple with this fundamental point. Those submissions discursively range over the chronology of the proceeding, the "principle" (sic) submissions of the appellant in support of his contention that he is eligible for portable payments pursuant to the SSA and at Part 4, under the heading "additional submissions", something is said about the discretion to refuse relief. 13 However, those submissions to the extent that they are comprehensible (as the respondent correctly submits) fail to identify any error in the reasons of the primary judge and "persist with the mistaken contention that the appellant is a recipient of, or has an entitlement to, a disability support pension." The appellant's submissions also contain a number of patently wrong assertions which indicate that the appellant has not read or not comprehended the reasons of the primary judge. As my reasons are quite unlikely to be of any interest to persons other than the parties, it is sufficient that I record my agreement with paragraph [5] of the respondent's submissions in reply filed on 7 August 2024. 14 For these brief reasons I dismiss the appeal as incompetent. There is no reason why costs should not follow the event. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.