Altomare and Department of Family and Community Services - [2000] AATA 603

DECISION AND REASONS FOR DECISION [2000] AATA 603

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1993/103

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARIA ALTOMARE
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date25 July 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Wife Pension - Widow Pension – reciprocal agreement between Australia and Italy – qualification for Widow Pension
Social Security Legislation Amendment Act 1994 (No 63 of 1994)
Social Security Act 1991 ss. 23, 362, 1215, 1216

REASONS FOR DECISION

25 July 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mrs Maria Altomare (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 10 March 1993 (T2) which affirmed a decision of an authorised review officer (ARO) of the respondent dated 4 November 1992 (T19-20), that had affirmed the delegate's decision dated 28 July 1992 to cancel the applicant's Widow B Pension (T14).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T23), together with nine exhibits, three lodged by the applicant (Exhibits A1-A3) and six lodged by the respondent (Exhibits R1-R6). The applicant, who resides in Italy, was represented by her brother, Mr F. Amato, and the respondent was represented by Ms L. Odgers, of counsel.
The issue before the Tribunal is whether or not the applicant is entitled to Widow B Pension.
history of the application
The applicant and her husband were born in Italy and married there in 1968. The applicant's husband came to Australia where he resided for ten years. The applicant, however, has always resided in Italy.
In July 1989 the applicant claimed a Wife Pension which was granted with effect from 13 April 1989. The applicant's husband died on 24 May 1991 and she was invited by the respondent to apply for Widow B Pension, which was subsequently granted (in error) with effect from 10 October 1991 (T12). Her Widow Pension was subsequently cancelled on 28 July 1992 (T14), a decision which has been affirmed upon review. The respondent has at no time sought to recover the monies which were erroneously paid, conceding sole administrative error.
legislative history
This matter has been delayed since 1993, pending anticipated reform and the development and ratification of a reciprocal agreement, originally mooted for 1994, between Australia and Italy on the issue of benefits and pensions between residents of the two countries, including widow's entitlements. That agreement appears in Schedule 3 of the Social Security Legislation Amendment Act 1994 (No 63 of 1994). Article 23 provides that the agreement enters into force on the first day of the month following exchange of instruments of ratification between the countries. As at the date of hearing, the Tribunal was advised that the agreement has passed through the Australian Parliament and was tabled on 19 June 2000. It is awaiting the fifteen day period until it becomes ratified (7 September 2000) and will have a consequent date of effect of 1 October 2000. The anticipated effect of the agreement will be payment of arrears of the applicant's Widow Pension. The applicant's representative, Mr Amato, indicated that he wanted to proceed with the appeal in any event, given a concern that the applicant may die prior to 1 October 2000 and would have no legal entitlement as a result.
Prior to any such agreement, qualification for Widow Pension is dependent upon sections 362, 1215 and 1216 of the Social Security Act 1991 (the Act). Sub-section 362(1), as at the time of the delegate's decision, stated:
"(1)     A woman is qualified for a widow B pension if:
          (a)       the woman:
(i)was, immediately before 1 July 1987, receiving a widow's pension as a class B widow under the 1947 Act; or
(ii)        on 1 July 1987 had turned 45 years old and:
(A)was receiving a supporting parent's benefit or a widow's pension as a class A widow on or after that day; or
(B)was receiving a sole parent's pension after 1 March 1989; or
(iii)       on 1 July 1987 had turned 50 years old; and
(b)       the woman is not qualified for a sole parent pension; and
          (c)       the woman:
(i)        was legally married and her husband has died; or
(ii)        was a dependent female, that is:
(A)she was a member of a couple and her partner has died; and
(B)she was a member of the couple for 3 years immediately before her partner died; and
(C)she was wholly or mainly financially maintained by him; or
(iii)       is divorced from her husband; or
(iv)was legally married and her husband has deserted her without just cause for a period of at least 6 months; or
(v)is legally married to a man who is in gaol and has been in gaol continuously for at least 6 months; or
(vi)      was:
  (A)       a party to a purported marriage that is void; and
(B)the man who was the other party to the purported marriage has deserted her without just cause for a period of at least 6 months; and
(C)in the Secretary's opinion, she believed that the purported marriage was valid when it took place; and
(d)       the woman is not a member of another couple; and
          (e)       either:
(i)the woman had been an Australian resident for a continuous period of at least 5 years immediately before the day she lodged the claim for the widow B pension; or
(ii)the woman has, at any time, been an Australian resident for a continuous period of at least 10 years; or
(iia)the woman has a qualifying residence exemption for a widow B pension; or
(iii)both the woman and her partner were Australian residents at the time:
(A)if she was legally married and her husband has died - when he died; or
(B)if she was a dependent female - when her partner died; or
(C)       if she is divorced - when she became divorced; or
(D)if she was legally married and her husband has deserted her - when she was deserted; or
(E)if she was a party to a purported marriage and the man who was the other party has deserted her - when she was deserted; or
(F)if she was legally married and her husband has been in gaol for a period of at least 6 months - when that period began."
Section 1215 of the Act was introduced by amending legislation and took effect as from 1 July 1991, relevantly providing:
"1215   Certain pensions of non-Australian residents generally not portable
(1)Subject to subsection (2), a woman who has never been an Australian resident is not qualified for a:
(a)       wife pension; or
  (b)       widow B pension; or
  (c)       special needs wife pension; or
  (d)       special needs widow B pension.
1215 (2) Subject to subsection (3), if a woman:
(a)       has never been an Australian resident; and
  (b)      was in receipt of:
(i)        a wife pension; or
(ii)        a widow B pension; or
(iii)       a special needs wife pension; or
(iv)       a special needs widow B pension;
under the Social Security Act 1947 before 1 July 1990; and
  (c)       is in a specified foreign country on 1 July 1991;
  she is not disqualified for that pension from 1 July 1991.
1215 (3) If a woman to whom subsection (2) applies:
(a)       enters a country that is not a specified foreign country; or
  (b)       is in a country when it ceases to be a specified foreign country;
she is disqualified for that pension as from the time:
(c)       she enters the country; or
(d)       the country ceases to be a specified foreign country;
as the case may be.
1215 (4)     Subsection (3) does not apply if the woman enters, or is in, a country as a transit passenger on an unbroken journey between 2 specified foreign countries."
"Specified foreign country" finds definition in sub-section 23(1) of the Act as:
"a country determined by the Minister to be a specified foreign country under subsection 38 (1)"
To date, the Minister has not made any such determination pursuant to sub-section 38(1) of the Act.
applicant's submissions
Mr Amato submitted, on behalf of the applicant, that he was concerned as to what will happen should the applicant die before 1 October 2000. He further submitted that the arbitrary application of the law and failure to effect international agreements fairly between various countries is unjust and unfair. He referred the Tribunal to the various agreements and draft agreements and particular articles therein. He submitted that the 1986 reciprocal agreement between Australia and Italy (T2) still had force and that the applicant should be entitled to receive a pension accordingly.
respondent's submissions
Ms Odgers submitted, on behalf of the respondent, that qualification is still determined pursuant to the legislation, and that whilst the 1986 agreement (T2) gives the applicant a right of claim, eligibility is still subject to the provisions of the Act. She concurred with Mr Amato that were the applicant to die before 1 October 2000 she would loose any entitlements, and whilst she was sympathetic to the extremely long time it has taken for Australia and Italy to ratify the new agreement, she submitted that as at the present time, the respondent is restrained by its legislation, under which the applicant is not eligible for Widow B Pension.
discussion and findings
The agreement in Schedule 3 of the amending legislation, Social Security Legislation Amendment Act 1994 (No 63 of 1994) only takes effect once the agreement is ratified. It has surely been a long process towards such ratification, and the Tribunal notes that the applicant has been promised a result for a long time!
The Tribunal has carefully considered the Mr Amato's submissions as to the applicability of the 1986 agreement, however it cannot accept that his interpretation of the law is correct in this instance.
Ms Odgers is correct that the 1986 agreement (T2) only gives the applicant the right to lay claim to pension. The applicant's eligibility for any such pension is still dependent upon eligibility as assessed pursuant to the provisions of the Act.
This Tribunal is required to determine what is correct as a matter of law. The Tribunal is mindful of Mr Amato's comments in his 1993 Statement of Issues (Exhibit A1) where he stated (inter alia):
"…
If the AAT's verdict on this case takes into consideration the justice aspect – in addition to the legal one – of the current Act, then it would help me in taking my case to the appropriate Parliamentary representatives."

Matters often come before this Tribunal where the application of the law is seen to be unfair or unjust. It is not a common law jurisdiction however, and its powers are limited. Where a statute makes provision of considerations of injustice and the like, the Tribunal is empowered to so consider. Where however, the legislation does not so provide, the Tribunal is required to determine what is the correct entitlement as a matter of the correct application and interpretation of the legislation.
In this case, the legislation is unequivocal, and the Tribunal considers that section 1215 as it currently stands (and as it stood in July 1992) can only be interpreted in this case so as to mean that the applicant is not qualified for Widow B Pension. The applicant cannot satisfy sub-paragraph (1)(b) of section 1215, because she has never been a resident of Australia. The applicant cannot satisfy sub-section (2) therein, because she is not in a "specified foreign country" as required by sub-paragraph (2)(c). In that regard, there has in fact been no ministerial declaration pursuant to section 38 of the Act to assist in the definition of "specified foreign country". Sub-sections (3) and (4) are clearly not applicable.
The Tribunal has no alternative but to consider that as the legislation currently stands (and stood as at July 1992), the applicant does not qualify for Widow B Pension. The Tribunal is sympathetic to the fact that it has been many years over which promises have been made to change the situation of people in the applicant's position, but ultimately, until such time as the legislation is amended, the Tribunal is bound to implement the legislation as it is.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  30 June 2000
Date of Decision  25 July 2000
Counsel for the Applicant        Mr F. Amato
Solicitor for the Applicant         -
Counsel for the Respondent    Ms L. Odgers
Solicitor for the Respondent    Centrelink