Alboaskar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 183
•28 March 2013
[2013] AATA 183
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4969
Re
Ruqaya Alboaskar
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 28 March 2013 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – special benefit – newly arrived resident’s waiting period – whether waiting period applies to applicant should be waived – whether substantial change in applicant’s circumstances beyond her control – whether change must occur after arrival in Australia –
decision under review affirmed
LEGISLATION
Social Security Act 1991 s 729, 739A
CASES
Re Chelechkov and Department of Social Security (1998) 26 AAR 321
Re Department of Social Security and Tadros [1998] AATA 111
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Secretary, Department of Social Security v Secara (1998) 89 FCR 151
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
28 March 2013
BACKGROUND
Mr Ali Nesarawe was born in Iraq and spent many years as a refugee in Lebanon before he was granted a humanitarian visa for travel to Australia. He arrived in 2003. He has returned to Lebanon several times since. He was granted Australian citizenship in 2006.
Ms Ruqaya Alboaskar was born in Iraq but left as a child and lived as a refugee in Lebanon. She met Mr Nesarawe in Lebanon in 2005. They married in Lebanon in 2007. Mr Nesarawe returned to Australia briefly in 2009 and again in 2011 but, otherwise, he remained in Lebanon with Ms Alboaskar while she waited for a visa for travel to Australia. In May 2012, Ms Alboaskar was granted a provisional spouse visa, and in July 2012, she and Mr Nesarawe arrived in Australia with their three children. They are expecting their fourth child in July.
On 1 August 2012, Ms Alboaskar applied for special benefit. Centrelink rejected her application on the ground that she was subject to a newly arrived resident’s waiting period of two years before being eligible for a social security payment. Centrelink further decided there was no reason the waiting period should not apply in her case.
I have to decide:
(i)did Ms Alboaskar qualify for special benefit when she applied on 1 August 2012;
(ii)if so, did the newly arrived resident’s waiting period apply to her.
LEGISLATION
Special benefit may be paid to a person who does not qualify for any other income support payment, and who is unable to earn sufficient livelihood for herself or himself and any dependents because of age, physical or mental disability, or domestic circumstances, or for any other reason: s 729 of the Social Security Act1991 (the Act).
A person who would otherwise qualify for special benefit, but who holds a visa of a certain class, is subject to a newly arrived resident’s waiting period of two years before being eligible for payment: subs 739A(1) and (2). A provisional spouse visa of the kind held by Ms Alboaskar when she arrived in Australia is one such visa: Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2011.
The newly arrived resident’s waiting period does not apply if, in the opinion of the Secretary (and so the Tribunal), the person has suffered a substantial change in circumstances beyond her or his control: s 739A(7).
Guidance on applying the legislation is found in the Guide to Social Security Law (the Guide) issued by the Secretary. The Guide is government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. As discussed below, however, some care must be taken with parts of the Guide.
DID MS ALBOASKAR QUALIFY FOR SPECIAL BENEFIT WHEN SHE APPLIED ON 1 AUGUST 2012?
The criteria for eligibility for special benefit are set out in s 729 of the Act. The only criterion in issue here is whether, when she applied on 1 August 2012, Ms Alboaskar was unable to earn sufficient livelihood for herself and any dependents: s 729(2)(e)
Apart from some casual work teaching Arabic in Lebanon, Ms Alboaskar has never been in paid employment. She has not looked for work since arriving in Australia because she has three young children and is expecting her fourth in July. Her English is limited. Mr Nesarawe receives a disability support pension, and she does not regard it as an option for him to care for the children while she works.
I am satisfied that Ms Alboaskar was unable to earn sufficient livelihood for herself and any dependents when she applied, and that she satisfied the criteria for special benefit.
HAS MS ALBOASKAR SUFFERED A SUBSTANTIAL CHANGE IN CIRCUMSTANCES BEYOND HER CONTROL?
The Secretary contends that Ms Alboaskar has not suffered a substantial change in circumstances beyond her control and that the newly arrived resident’s waiting period therefore applies.
Ms Alboaskar gave evidence that she and her husband and children lived in very difficult circumstances in Lebanon. They could not afford the rent on their apartment in Beirut and were forced to live on charity and help from family and friends. After talking to the Australian embassy, they decided they would have a better life in Australia but they had to wait four years before she was granted a visa.
Financial circumstances
Neither Ms Alboaskar nor Mr Nesarawe had any money to speak of in Lebanon and they had to borrow the money for their tickets to Australia. She brought no money with her and, as far as she knows, Mr Nesarawe had only a small amount of money from friends. She expected they would receive social security benefits in Australia, they would be able to repay their debts, and things would improve. As it turned out, when she applied shortly after she arrived, she found she had to wait two years.
Ms Alboaskar and Mr Nesarawe live on his disability support pension and family tax benefit which he receives at the single rate. They have a large debt to her brother who helped pay for their air fares to Australia, and debts to other family members and friends. Their rent is in arrears. Their financial difficulties have put their marriage under great strain and they are living separately while in the same property. Their intentions are not altogether clear, and both say they are reviewing the situation for the sake of their children.
Mr Nesarawe gave evidence that he was led to believe by Australian embassy staff in Beirut and Centrelink staff in Australia that Ms Alboaskar would be eligible for Centrelink benefits when she arrived in Australia. Had that occurred, it may have been ground for finding a substantial change in circumstances beyond Ms Alboaskar’s control (see, for example, Re Department of Social Security and Tadros [1998] AATA 111. However, although Mr Nesarawe’s evidence about the inquiries he made in Beirut, and in Australia, was not altogether clear, I am not satisfied that is what happened here.
A Centrelink record of a conversation with Mr Nesarawe on 24 August 2012 shows that he told the Centrelink officer that he expected he and Ms Alboaskar would receive Government benefits and accommodation when they arrived in Australia. Nothing in the record suggests he arrived at that understanding as a result of information from the embassy or Centrelink.
In a decision in October 2012, the Social Security Appeals Tribunal summarised the evidence given by Ms Alboaskar and Mr Nesarawe to that tribunal, including that Mr Nesarawe “assumed his wife would receive similar financial support when she arrived … and they would be provided somewhere to live by the government” and he did not understand why they were being treated differently from when he originally arrived in Australia. Nothing in the decision suggests Mr Nesarawe relied on information from the embassy or Centrelink.
Mr Nesarawe’s expectation that he and Ms Alboaskar would both be supported financially and with accommodation was not unreasonable, given that he received those forms of assistance when he first arrived as a refugee, but I am not satisfied he relied on misleading or incorrect information.
Mr Nesarawe’s medical conditions
I have considered whether Mr Nesarawe’s medical conditions might amount to a substantial change in circumstances beyond Ms Alboaskar’s control but I am not satisfied they do. Mr Nesarawe was not comfortable discussing his conditions at the hearing but he acknowledged that his psychological condition has existed for many years. He also suffers from a back problem but nothing suggests this is a recent development.
Timing of the change in circumstances
According to the Guide (at cl 3.7.2.20), if a person holds a temporary visa, a change of circumstances is only relevant for the purposes of s 739A(7) if it occurred after the person has arrived in Australia. That policy is reflected in the decision of the Centrelink Authorised Review Officer who stated that the newly arrived resident’s waiting period could only be waived where there has been “a substantial change in circumstances since arrival” (original emphasis). Those statements are not correct.
There is no express or implied limitation to this effect in the legislation, and the Tribunal and the Full Federal Court have held otherwise. In Secretary, Department of Social Security v Secara (1998) 89 FCR 151, Mansfield J said, at 159, there is no reason “in logic or in fairness why a temporal limitation by reference to the person's arrival in Australia should be specified”. He agreed with then President of the Tribunal, Justice Matthews, in Re Chelechkov and Department of Social Security (1998) 26 AAR 321 where she said at [329]:
It will no doubt be unusual for a change in circumstances which occurs before a migrant leaves his or her country of origin to fall within subs (7). This is because subs (7) will only apply to changes which are directly responsible for the migrant's state of poverty in Australia.
...
It will be a question of fact in each case as to whether, at the time of the change relied upon under subs (7), the applicant retained a realistic choice as to whether to continue with the migration or not. The further back in time one goes between the arrival in Australia and the event which is relied upon as constituting the change, the less likely it will be that the person was irrevocably committed to the migration process. If he/she had not reached that stage then it could not be said that the person's poverty in Australia was attributable to the change, but rather to the decision to migrate notwithstanding the change.
Mansfield J continued (at 159):
In my judgment, the point at which in a sensible and realistic way it can be said that the person irrevocably committed to migrating to Australia marks one point in time from which s 739A(7) may operate. Earlier than that point, as Matthews J pointed out, any financial adversity in Australia due to a change of circumstances may well not be attributable to the change but due to the decision to migrate notwithstanding the change. ... It will then be a matter of applying s 739A(7) to the particular facts before the relevant decision maker.
The Secretary says in these proceedings that the appropriate time from which to consider any change in Ms Alboaskar’s circumstances is once she was granted the provisional spouse visa (in May 2012) at which point, the Secretary says, she was irrevocably committed to migrating to Australia. I accept that submission. Considering her circumstances before, and since, arriving in Australia, the real change has been in Ms Alboaskar’s assumptions and expectations. Unfortunately, she and Mr Nesarawe did not fully investigate her eligibility for payment before they arrived. Learning that things were not as they expected does not amount to a substantial change in her circumstances beyond her control for the purposes of the newly arrived resident’s waiting period.
I understand that Ms Alboaskar has recently been granted a permanent spouse visa and has applied for a parenting payment which is not subject to a newly arrived resident’s waiting period. If, as expected, she can be paid from the date of her application, her financial difficulties will be somewhat alleviated. Unfortunately, however, I am not satisfied she can be paid special benefit in the meantime.
I affirm the decision under review.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ......[sgd]..................................................................
Associate
Dated 28 March 2013
Date(s) of hearing 27 March 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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