ALI And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 611

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 611

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2009/4457

GENERAL ADMINISTRATIVE DIVISION		)
Re		NASIRUDDIN ALI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President  

Date20 July 2010

PlaceMelbourne  

Decision The Tribunal dismisses the application for Disability Support Pension under the provisions of s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

......(sgd G L McDonald).........

Deputy President  

CATCHWORDS

Disability Support Pension – Residency requirement of the Social Security Act 1991 – Applicant nearly satisfied the time requirement – Not practical to review now – Application dismissed.

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Social Security Act 1991 (Cth) ss 94 and 94(1)(e)(ii)

REASONS FOR DECISION

17 August 2010   Mr G L McDonald, Deputy President

1.      A telephone directions hearing was conducted on 20 July 2010 to ascertain whether the applicant’s claim should be withdrawn and the progress of his claim for compensation for defective administration (a CDDA claim).  After discussing impediments facing the applicant the Tribunal dismissed the application.  The applicant's father requested written reasons for the determination.

2.      The applicant had lodged a claim for a Disability Support Pension (DSP) on 3 June 2009.  His claim was rejected on the 29 June 2009 for failing to meet the residency requirement.  Two subsequent reviews of this decision, by a Centrelink authorised review officer dated 24 July 2009 and by the Social Security Appeals Tribunal dated 19 August 2009, have affirmed the original decision.  An application for a further review was lodged with the Administrative Appeals Tribunal by the applicant on 16 September 2009.

3.      During the telephone directions hearing, the applicant was represented by his father, Mr Mohammed Ali, and Ms Ailsa Bramley represented the respondent.

4.      The applicant's circumstances are not in dispute and are as follows.  He was born in Calcutta on 10 August 1978 and was a citizen of the Republic of India.  His family migrated to New Zealand in 1995 but the applicant remained in India.  When he was aged 17 years he was injured when a temple he was attending with his grandfather collapsed as the result of flooding.  The applicant's grandfather was killed.  The applicant was classified as missing and feared dead.  However, in fact he had been washed down stream where he was saved.

5.      As a result of the injuries he received he was unable to identify himself to those who saved him.  It took some time for the authorities to identify him.  His family was notified of his circumstances in 1996, and on 2 February 2001 the applicant joined his family in New Zealand.  The applicant and his family subsequently moved to Australia, and on 26 February 2001 he was granted Australian residency. 

6.      Section 94 of the Social Security Act 1991 (Cth) provides a number of requirements to be met before a person can be granted a DSP. Section 94(1)(e)(ii) of the Act relevantly provides that a person must have ”10 years qualifying Australian residence” before a grant can be made.

7.      Australia has an International Agreement with New Zealand regarding the application of social security laws.[1]  The terms of the Agreement override the provisions of the Act.  When the terms of the agreement do not override the Act, then the provisions of the Act prevail.   The Agreement provides that a claim for a disability support pension can be made if the claimant has an aggregate of more than 10 years residence in Australia and/or New Zealand[2].  It is submitted on behalf of the applicant that his combined residence in New Zealand and in Australia is in excess of 10 years and that he, therefore, qualifies.  Clearly the applicant's combined residence is longer than 10 years.

[1] Social Security (International Agreements) Act 1999 (Cth), Schedule 3.

[2] Social Security (International Agreements) Act 1999 (Cth), Schedule 3, Article 12.

8.      However, the Agreement limits the combined residency qualification to people who incurred the severe disablement in either New Zealand or in Australia[3].  There is no dispute that the applicant incurred the injury in India.  His circumstances are not therefore covered by the Agreement, which has no application in his case. 

[3] Social Security (International Agreements) Act 1999 (Cth), Schedule 3, Article 2.

9.      The applicant is unable to qualify to receive the DSP until he meets the 10 year residency qualification in s 94(1)(e)(ii) of the Act.  This will be after 26 February 2011.  There is no other relevant provision nor a discretion for the tribunal to waive the qualifications which have been determined by Parliament.

10. Despite the obvious and unfortunate disablement suffered by the applicant there would be no point in this case proceeding to a hearing given the undisputed evidence available. To permit it to do so would result in expense and loss of time, and this would amount to permitting a vexatious case to proceed. The proper disposition of this review is for it to be dismissed under the provisions of s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

11.     For the above reasons the application is dismissed.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         ...........(sgd. D De Andrade)...............
  D De Andrade, Personal Assistant

Date of Hearing  20 July 2010
Date of Decision  20 July 2010
Date of Written Reasons          17 August 2010
For the Applicant  Mr M Ali
Solicitor for the Respondent     Ms A Bramley, departmental advocate