ANNE GARVEY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 721
•19 October 2012
[2012] AATA 721
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2046
Re
ANNE GARVEY
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 19 October 2012 Place Brisbane
The Tribunal affirms the decision under review.
[Sgd]
Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Australian residency requirements – Not permanent resident for 10 years – Temporary visas only for majority of time – United Kingdom international agreement repealed – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Migration Act 1958 (Cth) s 30
Migration Regulations 1994 (Cth) Sch 2
Social Security Act 1991 (Cth) ss 7, 43
Social Security (International Agreements) Act 1999 (Cth) s 12A, Sch 1
REASONS FOR DECISION
Mr P Wulf, Member
19 October 2012
INTRODUCTION
Ms Anne Garvey, the applicant,[1] lodged a claim for age pension on 25 January 2012.[2]
On 7 February 2012, Centrelink rejected her claim because she did not meet the Australian residency requirements for payment of age pension.[3] On 20 March 2012,
an authorised review officer affirmed the decision,[4] as did the Social Security Appeals Tribunal on 1 May 2012.[5] The applicant now seeks review by this Tribunal.
[1] Exhibit 1, T-Document 1, pp. 1-2.
[2] Exhibit 1, T-Document 6, pp. 23-46.
[3] Exhibit 1, T-Document 8, pp. 52-53.
[4] Exhibit 1, T-Document 9, pp. 54-56.
[5] Exhibit 1, T-Document 2, pp. 3-4.
In accordance with s 34J of the Administrative Appeals Tribunal Act 1975 (Cth), the parties have consented to forgo a hearing and have the application decided by consideration of the documents lodged with the Tribunal. Therefore, the application will be determined “on the papers”.
For the reasons contained within, the Tribunal affirms the decision under review.
ISSUE
The issue for determination in this case is whether the applicant has the requisite period of residency in Australia to qualify for age pension under the Social Security Act 1991 (Cth) (“the Act”).
LEGISLATION
Qualification for age pension is assessed in accordance with s 43 of the Act, which, relevantly, provides:
(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age pension;
(c) the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d) if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Note 1: For qualifying Australian residence see section 7.
Note 2: For pension age see subsections 23(5A), (5B) (5C) and (5D).
(1A) A woman is qualified for an age pension if:
(a) the woman has reached pension age; and
(b) the woman’s partner has died; and
(c) both the woman and her partner were Australian residents when her partner died; and
(d) the woman was an Australian resident for a continuous period of at least 104 weeks immediately before the day she lodged the claim for the age pension.
(3) Subsection (1) has effect subject to subsection 6(3) of the Social Security (International Agreements) Act 1999.
Subsection 7(5) of the Act defines “10 years qualifying Australian residence” as follows:
A person has 10 years qualifying Australian residence if and only if:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) the person has been an Australian resident during more than one period and:
at least one of those periods is 5 years or more; and
the aggregate of those periods exceeds 10 years.
Subsection 7(2) of the Act provides the definition for an “Australian resident”, which reads:
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.
Note: For holder and permanent visa see subsection (1).
Subsection 7(1) of the Act states that a “permanent visa” is one which is given that meaning by the Migration Act 1958 (Cth) (“the Migration Act”). Subsection 30(1) of the Migration Act provides that a “permanent visa” is one that allows the holder to remain in Australia “indefinitely”. Importantly, sub 30(2) states that a visa is only “temporary” if it allows the person to remain in Australia for a “specified period” or until a
“specified event happens”.
CONSIDERATION
Ms Garvey was born in England on 5 March 1936 and remains a British citizen.
She arrived and commenced living in Australia in October 2000 on a Subclass 686
long-term tourist visa.[6] On 12 April 2001, she was placed on a Subclass 020 visa[7]
and remained predominantly on that visa for the majority of the time that she has lived in Australia.[8]
[6] Exhibit 1, T-document 6, p. 29 and T-Document 10, p. 61.
[7] Exhibit 1, T-Document 6, p. 29 and T-Document 10, pp. 57-61.
[8] It appears that for two brief periods she was placed on a Subclass 010 Bridging Visa Class A.
On 3 February 2010, Ms Garvey was granted a Subclass 804 (Aged Parent – Migrant) visa, which is essentially a grant of permanent residency. It allows a parent to remain permanently in Australia so they can remain with any children who are living here.
Ms Garvey submitted, in her application for review by this Tribunal, that she wished for the decision to be reviewed because she “disagreed” and that “the decision is wrong”.[9] Ms Garvey has provided no other material in support of her argument.
[9] Exhibit 1, T-Document 1, p. 2.
There is no dispute that Ms Garvey is a woman who has reached pension age under sub 43(1) of the Act. However, to qualify she must also meet the residency requirements by one of the alternative means listed in subs 43(1) and 43(1A) of the Act. As Ms Garvey has no qualifying residence exemption, has not been in receipt of another social security allowance prior to attaining pension age, and is not a woman whose partner died while both were Australian residents, the only avenue for her to satisfy the residency requirement is for her to have “10 years qualifying residence” under sub 43(1)(a) of the Act.
Ms Garvey has lived in Australia for a period of more than 10 years. She appears, on the evidence before the Tribunal, to have lived here continuously for approximately 12 years. However, for the purposes of receiving the age pension, under sub 7(5) of the Act, Ms Garvey will only have 10 years qualifying residence if she has been an “Australian resident” for a continuous period of 10 years.[10]
[10] Subsection 7(5) also allows for the person to have 10 years qualifying residence if the 10 years residency is made up of more than one period and one of those periods is for at least five continuous years.
Being an Australian resident requires somewhat more than merely living in Australia;
it requires, under sub 7(2) of the Act, relevantly, that the person be either an Australian citizen or the holder of a permanent visa. Ms Garvey is not an Australian citizen.
Ms Garvey remained in Australia, during the period from October 2000 to February 2012, on, firstly, a Subclass 686 long-term tourist visa and then, predominantly, on a Subclass 020 visa. The visa which she entered Australia on, the Subclass 686 visa,[11] is a tourist visa and only allows the person to remain lawfully in Australia for a specified period of time.[12] The Subclass 020 visa is a “bridging visa” which, under s 73 of the Migration Act, is the type of visa which only allows a person who is a non-citizen to remain in Australia for a “specified time” or until a “specific event happens”.[13] As such, under the sub 30(2) of the Migration Act, both of these visas are considered to be temporary visas only.
[11] This subclass of visa was withdrawn on 1 July 2005 and integrated with the Tourist (subclass 676) visa.
[12] See Migration Regulations 1994 (Cth), Schedule 2, at 676, especially 676.5.
[13] See also Migration Regulations 1994 (Cth), Schedule 2, at 020, especially 020.5.
The Tribunal notes the financial pressures on Ms Garvey and has sympathy for her situation. Unfortunately for Ms Garvey, the only period where she can be considered as being the holder of a permanent visa is the period since she was granted the Subclass 804 (Aged Parent – Migrant) visa; that is from 3 February 2010 to the present time. As such, she can only be considered to be an Australian resident for approximately two and a half years and, therefore, does not have the 10 years qualifying residence required for her to be eligible to receive the aged pension under s 43 of the Act.
INTERNATIONAL AGREEMENT
Subsection 43(3) of the Act essentially states that qualification for age pension may be affected by an international agreement. These agreements generally provide for alternative means of satisfying the residency requirements where they cannot be met under the normal requirements of the Act.
While Schedule 1 of the Social Security (International Agreements) Act 1999 (Cth) relates to an agreement with the United Kingdom, this agreement was terminated on 1 March 2001. Section 12A of that Act provides for the agreement to still have effect for those applicants who became Australian residents before the agreement was terminated. However, as noted above, Ms Garvey cannot be considered to have become a permanent resident until 3 February 2010 and, therefore, she cannot rely on the international agreement to meet the residency requirements for receipt of the age pension.
DECISION
The decision under review is affirmed.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.
......................[Sgd]........................................
Associate
Dated 19 October 2012
Heard on the Papers 4 September 2012 Applicant In person Advocate for the Respondent Joe Guthrie
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