Levao v Secretary, Department of Social Services

REASONS FOR JUDGMENT 1 The appeal in this matter was from the decision of the Administrative Appeals Tribunal (the Tribunal) reported as Levao and Secretary, Department of Social Services (Social services second review) [2015] AATA 830. 2 The appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): such an appeal is limited to a question of law. 3 The notice of appeal was dated 10 August 2015 and is in the following terms: The Applicant appeals from the decision of Administrative Appeals Tribunal, General Division given on 15 July 2015 at Level 7, 55 Market St, Sydney NSW 2000 The Tribunal decided to affirm the decision on the issue of the Agreement between Australia and New Zealand for my Centrelink payments. The Applicant appeals from the decision about the unfairness of the agreement between New Zealand and Australia. Questions of law 1. The Agreement between New Zealand and Australia is not law because it is only an agreement. 2. Money I earned from New Zealand and taken from Australia is against my Human Rights. Orders sought 1. Return my money back to me 2. An order to stop them from taking my money Grounds relied on 1. Because money I earned from New Zealand should not be taken by Australia. 2. The money that was taken made struggle financially. 4 At the first directions hearing on 14 October 2015, that hearing having been set down later than it ordinarily would have been at the applicant's request, the applicant had filed no documents apart from his notice of appeal, to which was attached the decision, but not the reasons, of the Administrative Appeals Tribunal dated 15 July 2015. 5 At that first directions hearing, I stood the matter over to 2 December 2015 because the applicant was self-represented and, in my view, needed to get the reasons of the Tribunal and some legal advice. I granted leave to the applicant to file an amended notice of appeal, such leave to be exercised on or before 25 November 2015. The applicant did not exercise this leave. 6 On 2 December 2015, the position was that the reasons of the Tribunal had been provided to the Court but no other material had been filed. 7 Nevertheless, on 2 December 2015, Mr Levao said he was keen for the matter to proceed to final hearing on that day. 8 As found by the Tribunal, Mr Levao made a claim for and was granted an Age Pension in May 2014. He subsequently made a claim for New Zealand superannuation. In October 2014, the Department of Human Services was advised by the New Zealand Social Security Organisation that Mr Levao was granted New Zealand superannuation from 6 May 2014. Mr Levao was advised that his Age Pension would be affected by the rules contained in the Social Security Agreement between Australia and New Zealand, which governed this situation, and that his fortnightly rate of payment would be reduced as a result. 9 In his oral submissions, Mr Levao pointed to two factual errors in paragraph 1 of the Tribunal's reasons for decision, paragraph 1 stating: "Mr Levao was born in New Zealand in 1947 and became an Australian citizen in November 2011." First, Mr Levao said he was born in Western Samoa rather than in New Zealand and, secondly, he said he became an Australian citizen on 21 November 2001 rather than in November 2011. Mr Thompson, who appeared for the respondent, accepted that these factual errors had been made by the Tribunal. 10 Next, Mr Levao submitted that the reasons for decision of the Tribunal did not bear any official stamp, except on page one. 11 Thirdly, Mr Levao said that there was a lot of difficulty with his financial situation from the reduction of his age pension because of his New Zealand superannuation. 12 Considering first the appeal from the Tribunal on its merits, there is no substance in the first paragraph under the heading Questions of Law. This is because of the terms of the Social Security (International Agreements) Act 1999 (Cth) ss 3, 5 and 6 and Schedule 3. Sections 3, 5 and 6(1) are as follows: 3 Interpretation (1) … (2) A reference in this Act (other than the reference in section 4) to the social security law is a reference to this Act, the Social Security Act 1991 and any other Act that is expressed to form part of the social security law. (3) A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the Social Security Act 1991 or any other Act that is expressed to form part of the social security law. 5 Scheduled international Social Security agreements (1) For the purposes of a provision of the social security law, an agreement is a scheduled international social security agreement if: (a) the agreement is between Australia and another country; and (b) the agreement relates to reciprocity in social security or superannuation matters; and (c) the text of the agreement is set out in a Schedule to this Act. (2) The reference in subsection (1) to a scheduled international social security agreement includes a reference to such an agreement as amended, or otherwise affected in its operation, by a further agreement or further agreements between Australia and the other country concerned. 6 Overriding of social security law by scheduled international social security agreements (1) The provisions of a scheduled international social security agreement have effect despite anything in the social security law. … 13 By Schedule 3 to that Act, the Agreement on Social Security between the Government of Australia and the Government of New Zealand 28 March 2001, [2002] ATS 12 (entered into force 1 July 2002) is made a scheduled international social security agreement. The agreement is therefore between Australia and another country; the text of the agreement is set out in a Schedule; and the agreement relates to reciprocity in social security or superannuation matters. 14 The notice of appeal identifies no other question of law. 15 I turn next to the oral submissions made by Mr Levao. 16 As to the factual errors made by the Tribunal in paragraph 1, nothing turns on them and they are not material: there is no suggestion that his place of birth has any bearing on his entitlement to New Zealand superannuation and the fact that he became an Australian citizen in 2001 rather than 2011 does not affect his grant of the age pension in Australia in 2014. 17 Next, as to the official stamp appearing only on page one of the reasons for decision, in my opinion, there is no reason to doubt the authenticity of the version of the reasons for decision which are before the Court. They were given to the solicitor for the respondent and filed in this Court on 5 November 2015. The reasons for decision which are before the Court are also the same as the reasons published on AustLII: see the citation in [1] above. 18 The third point made by Mr Levao in his oral submissions as to his financial difficulties goes, at best, to the merits of the Tribunal's decision and is not a matter that falls within the jurisdiction of this Court under s 44 of the Administrative Appeals Tribunal Act. 19 The applicant has neither identified nor demonstrated any legal error in the decision or reasons of the Tribunal. 20 The appeal must be dismissed. 21 The respondent seeks costs. Although the applicant referred to his impecuniosity, that is not a basis upon which I would refuse to make a costs order in favour of the successful party: see, for example, SZAFV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1457 at [15]. The applicant should pay the respondent's costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.