Arachchi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 160

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 160

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° 2007/0526

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KRISHANTHI MALA DANDENIYA ARACHCHI

Applicant

And

SECRETARY,

DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date27 February 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Mr C. Ermert

Member

SOCIAL SECURITY – family tax benefit – eligibility - lodgement of claim for permanent residence visas – backdated lodgement of claim – permanent residence visas granted – whether Australian resident – holder of a permanent visa – period of the visa – holder of visa at the time of making FTB claim – whether errors in application of migration law - decision affirmed

Administrative Appeals Tribunal Act 1975

A New Tax System (Family Assistance) Act 1999 ss 21(1) and 21(1A)

Social Security Act 1991 ss 7(2) and 729(2)(f)(v)

Migration Act 1958 ss 5 and 77

Australian Citizenship Act 2007 s 22(4A)

REASONS FOR DECISION

27 February 2008  Mr C. Ermert, Member

INTRODUCTION

1.      In 1997 Mrs Dandeniya Arachchi and her husband arrived in Australia on temporary student visas.  In April 2003 Mr and Mrs Dandeniya Arachchi lodged applications for permanent residence visas with the then Department of Immigration, Multicultural and Indigenous Affairs (DIMIA).  DIMIA did not issue permanent residence visas at the time and Mr Dandeniya Arachchi initiated an appeal process.  On 27 May 2005 the Federal Magistrate’s Court delivered a judgement that Mr Dandeniya Arachchi’s visa application be remitted to the Minister for Immigration, Multicultural and Indigenous Affairs for determination according to law.  On 13 December 2005 Greg Mills, Assistant Secretary Migration Branch, advised that DIMIA would accept that Mr Dandeniya Arachchi’s visa application was lodged on 1 June 2003 and the application would be considered on its merits.  On 5 May 2006 DIMIA granted Mr and Mrs Dandeniya Arachchi and their family permanent residence visas. 

2.      On 11 May 2006 Mrs Dandeniya Arachchi lodged a Claim for Family Tax Benefit (FTB) for the 2003-2004 financial year.  An officer of Centrelink, the service providing agency acting for the respondent, rejected the claim on the basis that  Mrs Dandeniya Arachchi did not meet the Australian residence requirements for the period.  That decision was affirmed in turn by an Authorised Review Officer of Centrelink and the Social Security Appeals Tribunal (SSAT).  This hearing is a review of the decision made by the SSAT on 2 January 2007.

THE HEARING

3. At the hearing Mrs Dandeniya Arachchi was represented by her husband, Mr Manoj Kumar Dandeniya Arachchi. The respondent was represented by Mr Michael Todd, a Centrelink advocate. I had before me the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). 

THE ISSUE

4.      The issue before the Tribunal is whether Mrs Dandeniya Arachchi satisfied the residence qualifications to be granted FTB for the 2003-2004 financial year. 

LEGISLATION

5. Section 21(1) of A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) states that an individual is eligible for FTB if the individual is an Australian resident.

6. Section 21(1A) of the Family Assistance Act provides for an individual to also be eligible for FTB if they are the holder of visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991 (the Act).  In its Statement of Facts and Contentions the respondent submits that Mrs Dandeniya Arachchi did not satisfy this section of the Act.  Mr Dandeniya Arachchi did not pursue this issue nor present any evidence on it.  Accordingly, I accept the respondent’s submission and find accordingly. 

7.      Australian resident is defined in Section 7(2) of the Act which states:

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.

8.      In his evidence Mr Dandeniya Arachchi stated that he was not an Australian citizen and I take this to apply also to his wife.  He also stated that the special category visa does not apply to this case.  Thus the issue is refined to the question of whether, for the relevant period, Mrs Dandeniya Arachchi was the holder of a permanent visa. 

Was Mrs Dandeniya Arachchi the holder of a permanent visa for the 2003-2004 financial year?

9.      At the hearing Mr Dandeniya Arachchi submitted that he was a holder of a permanent visa at the time when he lodged the claim and that … there is no provision in Social Security Act to say you have to be a permanent resident for the time period we are referring into (Transcript page 7).  I understand this contention to be that as Mrs Dandeniya Arachchi was the holder of a permanent residence visa at the time of making the claim for FTB, that being 11 May 2006, she is eligible to receive FTB for the period of the 2003-2004 financial year. 

10.Section 21(1) of the Family Assistance Act relevantly states:

An individual is eligible for family tax benefit if:

…

(b) the individual:

(i)  is an Australian resident;

11.     Subsection (b) is written in the present tense.  Therefore, for an individual to be eligible for FTB the individual must be an Australian resident at the time of eligibility.  There is no provision for an individual to be eligible for FTB on the grounds that they become an Australian resident at some time in the future, such as when the claim is lodged as contended by Mr Dandeniya Arachchi, and I find accordingly.

12.     In his written “Contentions of Fact & Law of the Applicant” dated 22 October 2007 Mr Dandeniya Arachchi submits that the respondent in denying qualification for FTB is … adding a new meaning to the current legislation … seeking a meaning beyond what is authorised by the Act nor intended by the parliament by seeking residency status of the applicant before the application was made

13.     The meaning of holder in section 7(2) of the Act is defined by reference to the Migration Act 1958. Section 5 of the Migration Act defines holder as:

… in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.

14.Section 77 of the Migration Act states:

…a non-citizen holds a visa at all times during the visa period for the visa.

15.     In this case permanent visas were granted to the Dandeniya Arachchi family on 5 May 2006 and are valid until 5 May 2011.  That means that the holders in relation to those visas are the persons to whom they were granted, in this case to Mr and Mrs Dandeniya Arachchi and family.  The visa period is from 5 May 2006 to 11 May 2011.  Thus the Dandeniya Arachchi family are holders of their visas from 5 May 2006 to 11 May 2011, being the period for the visa in accordance with the provisions of sections 5 and 77 of the Migration Act. The period for the visa is defined in the visa and it is not open to the respondent to define it in any other way. This means that Mrs Dandeniya Arachchi is a holder of a permanent residence visa for the period 5 May 2006 to 11 May 2011. I note that during the 2003-2004 financial year, Mrs Dandeniya Arachchi held a bridging visa. However, a bridging visa is not a permanent visa. Therefore, Mrs Dandeniya Arachchi was not the holder of a permanent residence visa for the period of the 2003-2004 financial year, and I find accordingly

16.     In his Contentions of Facts and Law, Mr Dandeniya Arachchi also refers to a document signed between the Department of Social Security Australia and the Ministry of Labour and Social Welfare Italy (attached as Doc 4 to his Contentions).  Article 16 of the document relates to the Lodgement of Claims and states: Where a claim for a benefit of a Party is lodged in the territory of the other Party or in a third country in accordance with paragraph 1, the date on which the claim is lodged shall be the date of lodgement of the claim for all purposes relating to the claim.  Without determining the relevance of the agreement to the situation in this case, I note that the issue relates only to the lodgement of the claim.  It contains nothing related to the outcome of the claim.

17. In this case the date of lodgement of the claim is not in issue. It has been determined by the then Minister for Immigration, Multicultural and Indigenous Affairs to be 1 June 2003. The difficulty faced by Mr and Mrs Dandeniya Arachchi is that the outcome from the claim, the issue of a permanent residence visa, did not occur until 5 May 2006. This means that Mr and Mrs Dandeniya Arachchi were not holders of permanent residence visas until 5 May 2006, even though their claims were backdated to 1 June 2003. As a consequence, during the 2003-2004 financial year Mrs Dandeniya Arachchi was not an Australian resident as defined in section 7(2) of the Act and was therefore not eligible to receive FTB for that period, and I find accordingly.

18.     At the hearing Mr Dandeniya Arachchi also submitted that DIMIA, in backdating the lodgement of the applications for permanent residence visas, acknowledged that it had made an error.  Mr Dandeniya Arachchi submitted that the respondent should accept that error and consider them both as permanent residents from June 2003 onwards.  He referred the Tribunal to the Ministerial discretionary provisions of section 22(4A) of the Australian Citizenship Act 2007.  In response to this issue, Mr Todd submitted that Centrelink officers have no powers to make determinations in relation to migration law and that it would be beyond the powers of either Centrelink or this tribunal to make a finding that there was an error under migration law.   I accept Mr Todd’s submission that it is not within the powers of this tribunal to make findings in regard to migration law in this case. 

2004-2005 Financial Year

19.     The issue before the tribunal is the decision of the SSAT dated 2 January 2007 which related to the 2003-2004 financial year.  During the hearing it was Mr Todd stated that a decision in relation to the 2003-2004 financial year would also be applied by the respondent to the 2004-2005 financial year. 

Summary of Findings

20. In these reasons for decision I have found that, for the 2003-2004 financial year, Mrs Dandeniya Arachchi was not the holder of visas determined by the Minister in section 729(2)(f)(v) of the Act therefore did not satisfy the provisions of section 21(1A) of the Family Assistance Act. I have also found that Mrs Dandeniya Arachchi is a holder of a permanent residence visa for the period 5 May 2006 to 11 May 2011 but not for the 2003-2004 financial year, and that there is no provision in the Act that provides for Mrs Dandeniya Arachchi to be eligible for FTB for a period on the grounds that she became an Australian resident at a later time.

21. As a consequence, I have found that during the 2003-2004 financial year Mrs Dandeniya Arachchi was not an Australian resident as defined in section 7(2) of the Act and was therefore not eligible to receive FTB for that period. In this case the application was not successful. This decision is to apply also to the 2004-2005 financial year.

22.     Mr Dandeniya Arachchi may be entitled to lodge an application for a review of the DIMIA decision to grant the permanent residence visas from 5 May 2006 and not backdate them to a date closer to the deemed date of lodgement of the claim, being 1 June 2003.  This must remain a matter for Mr Dandeniya Arachchi. 

DECISION

23.The Tribunal affirms the decision under review.

I certify that the twenty three [23] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)     Lauren Spragg
  Clerk

Date of Hearing:  21 January 2008

Date of Decision:  27 February 2008

Advocate for the applicant:                 Mr Manoj Kumar Dandeniya Arachchi, husband of the applicant

Advocate for the respondent:             Mr Michael Todd, Centrelink Legal Services