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

[2013] AATA 53

[2013] AATA 53 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1483
Re	ALI DIRIYE
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr A Frazer, Member
Date	1 February 2013
Place	Perth

Decision Summary
The Tribunal affirms the decision under review.

.....(sgd) Dr A Frazer.....................

Member

Catchwords

SOCIAL SECURITY – qualification requirements – residency and medical requirements - decision under review affirmed

Legislation

Social Security Act 1991 (“the Act”), Social Security (International Agreements) 1999.

REASONS FOR DECISION

Dr A Frazer, Member

1 February 2013

INTRODUCTION

1. Mr Ali Diriye, (“the applicant”), who is 40 years old, has paraplegia following childhood polio from the age of 10 contracted in Somalia.  He applied for disability support pension (“DSP”) on 3 January 2012.

2. On 11 January 2012 a Centrelink officer rejected his claim.  It was accepted the applicant has paraplegia which is permanent and rates 20 points under the Impairment Tables.  However, the applicant did not have 10 years qualifying experience, did not meet the criteria of being severely disabled and his disability did not have its onset whilst he was resident in Australia or New Zealand. 

3. The applicant requested a review of this decision which was affirmed by a Centrelink authorised review officer (“ARO”) on 17 February 2012.

4. On 17 February 2012 the applicant applied to the SSAT for a review of Centrelinks’s decision of 11 January 2012 and on 23 March 2012 the SSAT affirmed the decision under review.

5. On 17 April 2012 the applicant applied to this Tribunal for a review of the SSAT’s decision that the applicant’s claim for DSP be rejected.

   THE RELEVANT LEGISLATION

• The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (International Agreements) Act 1999 (the International Agreements Act.)

• Provisions relating to whether a person is qualified for DSP and whether DSP is payable to a person are contained in Part 2.3 of the Act.

• Section 94 of the Act contains the qualifications for DSP.  Apart from the medical and work capacity requirements set out in the above section, a person must satisfy residency requirements described in section 94(1)(e) i to iii of the Act.

• An Australian resident is described in subsection 7(2) of the Act as being a person who resides in Australia and who is either an Australian citizen, the holder of a permanent visa (SCV) holder who is a protected SCV holder.  Sections 7(2A) to 7(2E) of the Act provide that a person is a protected SCV holder if amongst other things they were resident in Australia on 26 February 2001.  

• The Guide to the Social Security Law (the Guide) [Att 2, ch 9.2.6.280] explains that a 444 visa is a Special Class Visa (SCV) issued to New Zealand citizens on arrival in Australia. It is not a permanent visa.

• Section 7(6) of the Act provides that refugee, or former refugee, residing in Australia has a qualifying residence exemption. Section 6(B) of the Act defines a refugee as a person who holds a particular visa issued under Australian regulations.  The holder of a 444 visa, for the purposes of the Act, is not a refugee or former refugee.

• Schedule 3 of the International Agreements Act provides an agreement between New Zealand and Australia for the provision of some welfare payments.  Article 2, paragraph 1 identifies that DSP is covered by that agreement. 

• Article 2, paragraph 2 of the International Agreements Act provides that access to an Australian DSP is limited to cases where the person is severely disabled, the person was a resident of either New Zealand or Australia when they became severely disabled and the person was residing in New Zealand for at least a year prior to the date of severe disablement.  

• Severely disabled is defined in Article 1(1) of Schedule 3 of the International agreement Act as a person who has an impairment and is totally unable to work for at least the next 2 years or to benefit within the next 2 years from participation in a program of assistance or rehabilitation.  

  THE EVIDENCE

1. The evidence before the Tribunal comprised:

   ·the “T Documents” (T1-T11), pp 1 – 265, lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);

   The applicant’s evidence

2. The applicant told the Tribunal that he was born in Somalia in 1972. At the age of 10 (1982) he contracted polio and as a consequence has been left with a paraplegia, or loss of movement in his legs. 

3. In 2000 he went to New Zealand as a refugee.  He moved to Australia on 22 December 2011 because of the warmer weather.

4. The applicant said he is the holder of a class 444 visa. The applicant accepted that this is a special category visa issued to New Zealand citizens on arrival to Australia. It is not a permanent visa.

5. The applicant said that he is mobile with the use of a manual wheelchair and is independent in transferring and self care.  The applicant said he has worked for 7 to 8 hours a week despite his impairment as a taxi driver.

   ANALYSIS

6. The Tribunal has found that the applicant does not satisfy Australian residency requirements for the DSP as the applicant was not an Australian resident when he became disabled.  Also, the applicant did not have 10 years qualifying residence in Australia or a qualifying residence exemption.

7. The Tribunal accepts that the applicant is the holder of a 444 visa and for the purposes of the Act is not a refugee or former refugee, but a New Zealand citizen who has entered Australia on an SCV. 

8. The Tribunal accepts that the applicant is capable of and has worked for up to 8 hours a week as a taxi driver.  The Tribunal accepts that the applicant is not severely disabled for the purposes of the International Agreements Act.

   DECISION

9. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member.

...(sgd) T Freeman..............
Associate

Dated   1 February 2013

Date(s) of hearing	12 October 2012.
Applicant	In person
Advocate for the Respondent	Ms L Gallagher Sparke Helmore