Aklima Akter and Secretary, Department of Social Services

[2014] AATA 708

[2014] AATA 708 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1093
Re	Aklima Akter
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	30 September 2014
Place	Sydney

The decision under review is affirmed.

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Ms N Isenberg, Senior Member

CATCHWORDS

Social Security - Claim for baby bonus - Question as to identity of claimant on form - Relevant period for consideration - Whether Applicant or child Australian Residents at time of application - Child not resident in Australia at time of application - Applicant not eligible for Family Tax Benefit with respect to birth of child - No discretion to waive residence requirement - Decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth), ss 21(1), 36(2)(aa), 36(2)(b)

Social Security Act 1991 (Cth), s 7(1)(2)

CASES

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

SECONDARY MATERIALS

The Family Assistance Guide, 2.1.1.10

REASONS FOR DECISION

Ms N Isenberg, Senior Member

30 September 2014

DECISION UNDER REVIEW

1. The decision under review by this Tribunal, is the decision of the Social Security Appeals Tribunal (SSAT) made on 17 February 2014 which affirmed a decision made on 19 December 2013 by an Authorised Review Officer (ARO) of Centrelink to refuse the Applicant's claim for baby bonus.

   ISSUE

2. The sole issue for determination by this Tribunal is whether the Applicant is eligible for a baby bonus payment with respect to her son.

   BACKGROUND

3. The Applicant, Ms Aklima Akter, is the mother of boy who was born in Bangladesh on 18 April 2011. On 17 December 2011 she arrived in Australia with her son on an Australian visa subclass 309. On 19 December 2011, the applicant lodged a claim for family tax benefit and baby bonus with respect to her son; that application was lodged in her name.

4. The application for a baby bonus payment was refused by Centrelink on 9 February 2012 Centrelink, although the applications for family tax benefit and care allowance were granted – those allowances took effect from 13 February 2012.  

5. That decision was affirmed on internal review and by the SSAT. The applicant now seeks review by this Tribunal.

   Preliminary consideration: who was the claimant for baby bonus?

6. At the hearing the applicant’s husband, Mr Hasan, made submissions on behalf of his wife. He also gave evidence that it was he, and not his wife, who had made the claim for baby bonus and that as an Australian citizen, he was eligible for the baby bonus. This contention was not made to the SSAT, although Mr Hasan, as his wife’s nominee, raised with the ARO that “he” had claimed the baby bonus within 52 weeks of his son’s birth.

7. Mr Hasan referred to the claim form, which he said he had lodged. The form is a document of multiple pages, which a claimant is required to complete, wherein the claimant provides information about themselves and their partner. On the first page of that form, the claimant is clearly recorded as Aklima Akter, and her partner is recorded as Mr Hasan. Throughout the remainder of the form, under columns headed “you” and “you partner” the information provides mixes details of the applicant and her husband. Even within those clearly marked columns there is mixed information, for example, recording in the same column, the date of citizenship (Mr Hasan) and the visa details (Ms A). Mr Hasan said that he completed the form and took it into Centrelink where it was ‘checked’. I have significant reservations that this occurred because the form is so clearly a mixture of information, such that it would not withstand the most cursory of examinations. There is no clear pattern that each entry after the first page as “you” consistently refers to Mr Hasan. I do not accept that Mr Hasan was the claimant for the baby bonus.

   LEGISLATION

8. The legislation relevant to this review is contained in the Social Security Act 1991 (Cth) and A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act).

9. Section 36 of the Act sets out the qualification requirements for baby bonus:

   36 When an individual is eligible for baby bonus in normal circumstances

   An individual is eligible for baby bonus in respect of a child in any of the 4 cases set out in this section.

   Parent of child

   First, an individual is eligible for baby bonus in respect of a child if:

   (a) the individual is a parent of the child; and

   (aa) the child is an FTB child of the individual; and

   (ab) either:

   (i) the individual is the primary carer of the child at any time within the period of 26 weeks starting on the day of the child's birth; or

   (ii) the individual is a member of a couple at any time within the period of 26 weeks starting on the day of the child's birth and the individual's partner is the primary carer of the child at that time; and

   (b) the individual either:

   (i) is eligible for family tax benefit in respect of the FTB child at any time within the period of 26 weeks starting on the day of the child's birth; or

   Relevant period: s 36(2)(b)

10. In determining this matter, the Tribunal must have reference to the relevant period as defined under the FA Act. Pursuant to s 36(2)(b), the relevant period commences at the birth of the child, and concludes 26 weeks thereafter. In the present case, that period is between 18 April 2011 and 17 October 2011.

    Was the Applicant’s son an 'FTB child' for the purposes of s 36(2)(aa)?

11. Section 3 of the FA Act provides that the term 'FTB child' has the meaning given in Subdivision A of Division 1 of Part 3 of the FA Act, which provides in s 22:

    22 When an individual is an FTB child of another individual

    (1) An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

    Individual aged under 16

    (2) An individual is an FTB child of the adult if:

    (a) the individual is aged under 16; and

    (b) the individual is in the adult's care; and

    (c) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and

    (d) the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).

    Legal responsibility for the individual

    (5) The circumstances surrounding legal responsibility for the care of the individual are:

    (a) the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or

    (b) …; or

    (c) ….

12. During the hearing, the Respondent sought to rely upon The Family Assistance Guide (‘the Guide’), in particular a passage at 2.1.1.10 of that document, which explains the criteria for when an individual is to be considered an FTB child of an adult. One essential criteria identified in the Guide is that the child must be an Australian resident.

13. Section 3 of the FA Act provides that the term 'Australian resident' has the same meaning as in the Social Security Act 1991 (Cth). Subsection 7(1) of the Social Security Act states that "Australian resident" has the meaning given in subsection (2) which provides:

    Section 7 - Australian Residence Definitions

    (2) An Australian resident is a person who:

    (a) resides in Australia; and

    (b) is one of the following:

    (i) an Australian citizen;

    (ii) the holder of a permanent visa;

    (iii) a special category visa holder who is a protected SCV holder.

14. The Guide at 2.1.2.10 sets out the residency requirements when claiming family tax benefit and baby bonus and provides, notably, “to be an Australia resident [the child] must not only have the right to live in Australia permanently, they must also be residing in Australia”.

15. Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide, the Respondent submitted that Departmental policy promotes consistency and fairness in decision-making and should be applied unless there are cogent reasons to depart from that policy: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

16. The Applicant’s son holds an Australian passport and is an Australian citizen through Mr Hasan. However the requirement is that the child must actually be resident in Australia. I find that the Applicant’s son was not an Australian resident because he was not residing in Australia during the relevant period. Therefore he was not an FTB child for the purposes of the baby bonus claim.

    Was the Applicant eligible for family tax benefit within 26 weeks of her son’s birth?

17. Section 21(1) of the Act sets out the qualification requirements for family tax benefit:

    21 When an individual is eligible for family tax benefit in normal circumstances

    (1) An individual is eligible for family tax benefit if:

    (a) the individual:

    (i) has at least one FTB child; or

    (ii) …and

    (b) the individual:

    (i) is an Australian resident; or

18. The Applicant’s son was born in Bangladesh on 18 April 2011. The Applicant and her son arrived in Australia on 17 December 2011, which is more than 26 weeks after he was born. The Applicant did not qualify for family tax benefit until 13 February 2012.

19. The Applicant therefore was not eligible for family tax benefit in respect of her son’s birth at any time within the period of 26 weeks from the time of his birth.

    Evidence of Applicant’s health

20. Mr Hasan submitted that his wife was ill and consequently was unable to travel to Australia. He provided an undated letter from Dr Hoque of Dhaka, which, as best as I can make out, described some respiratory problem and psychological problems. The letter did not advise the applicant against travel; only that she should continue her treatment on her arrival in Australia. She was said to be unable to take care of the child and that Mr Hasan was the primary carer. Again, there was no indication as to when this was said to be the case. The contention that he was the primary carer also appears to be at odds with the information provided in another undated letter from Dr Hoque to the effect that Mr Hasan had broken his leg on 15 April 2011, 3 days before her son’s birth, and was unable to travel until 17 December 2011.

    CONCLUSION

21. I observe that there is no discretion to waive the requirement for residency of both the claimant and the child in an application for baby bonus.

22. In summary, the Applicant does not qualify for baby bonus because neither she nor her son were Australian residents during the relevant period: s 36(2)(aa) and (b) of the Act.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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Associate

Dated 30 September 2014

Date of hearing	17 September 2014
Advocate for the Applicant	Mr M Hasan
Solicitors for the Respondent	Ms B Salaji, Department of Human Services