Awoyemi and Secretary to the Department of Family and Community Services

[2000] AATA 1056

DECISION AND REASONS FOR DECISION [2000] AATA 1056

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No.  V2000/776

GENERAL  ADMINISTRATIVE  DIVISION     )          

Re      LAWRENCE AWOYEMI    

Applicant

And   SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES           

Respondent

DECISION

Tribunal       Adjunct Professor L.S. Rodopoulos, Member    

Date30 November 2000

PlaceMelbourne

Decision      The decision under review is affirmed.   

(…Sgd.  L. S. Rodopoulos…)
  Member
CATCHWORDS
SOCIAL SECURITY – Family allowance cancellation – applicant not qualified – does not meet s. 7(2)(i), (ii), (iii) and (iv) requirements – decision affirmed.

Social Security Act 1991 ss. 7(1), 7(2), 23(1), 41 and 880
Migration Act 1958 ss. 5(1), 32 and 33

Re Chang and Secretary, Department of Family and Community Services [1999] AATA 684

REASONS FOR DECISION

30 November 2000  Adjunct Professor L.S. Rodopoulos, Member

1. This is an application for review sought by Mr Lawrence Awoyemi concerning a decision made by the Social Security Appeals Tribunal ("the SSAT") on 26 May 2000 pursuant to the Social Security Act 1991 ("the Act").  The decision of the SSAT affirmed the decision of a delegate of the Department made on 7 March 2000 and affirmed on 20 March 2000 by an Authorised Review Officer ("the ARO") that payments of Family Allowance and Family Tax Payment be cancelled. 

2. The Tribunal received into evidence documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 T1-T20; Extracts from Commonwealth of Australia Gazettes No. 503 Friday, 22 October 1999 Social Security (Declaration of Visas as Approved Visas) Determination No. 1 of 1999 and No. 325, Wednesday, 7 September 1994 Social Security (Declaration of Visas as Approved Visas) Determination No. 1 (Exh. R1); and copy of Centrelink information on the Family Allowance dated 20 September to 31 December 1998 (Exh. R2).  Ms Karyn Cunningham of the Advocacy and Administrative Team, Centrelink represented the Secretary, Department of Family and Community Services and Mr Awoyemi spoke on his own behalf.  No witnesses were called.

3. The agreed factual background to this application is that Mr Awoyemi, a citizen of Nigeria, was granted an Overseas Postgraduate Scholarship to study at the University of Melbourne.  He arrived in Australia on 9 August 1997 to take up this Scholarship.  He was granted a visa CLASS TU STUDENT P137 SUB CLASS 560 (T7, p31).  On 31 January 1998 he returned to Nigeria and married a citizen of Nigeria on 21 February 1998 (T5, p10; T8, p34).  He subsequently returned to Australia on 11 April 1998 (T7, p32) and was joined by his wife on 1 August 1998.  She also travelled on a visa CLASS TU STUDENT P137 SUB CLASS 560 (T8, p36).  A daughter was born to the couple in Australia on 27 December 1998.  On 31 January 2000 Mr Awoyemi lodged an application for receipt of Family Allowance and Family Tax Payments (T5, pp10-27).  A request for payment of arrears from 27 December 1998 was also lodged.  Family Allowance and Family Tax Payments were granted from 31 January 2000 (T10, p38; T11, pp39-41).  In light of consideration of Mr Awoyemi's entitlement to arrears the Family Allowance and Family Tax Payment were suspended (T14, p45) and subsequently cancelled, after the further review, on 21 March 2000 (T18, p65).  A small over payment was waived.

4. Referring to the legislation, (refer to subsequent paragraphs of this decision), Ms Cunningham told the Tribunal that Mr Awoyemi did not qualify for the allowances under review. This was because he was not an inhabitant of Australia as defined at s. 23 of the Act. As a holder of a temporary visa he does not have the entitlements of a person on a permanent visa and he does not hold either a special category or special purpose visa as provided for under s. 7(2)(iii) and (iv) of the Act. Ms Cunningham referred the Tribunal to the matter of Re Chang and Secretary, Department of Family and Community Services [1999] AATA 684. In this case Senior Member Purcell refused an extension of time to appeal to the Administrative Appeals Tribunal on the grounds that Ms Chang could not succeed in her application. This was due to her not being an Australian resident as defined at s. 7(2) of the Act, nor did she hold a category of visa to qualify as an exempt resident (refer paragraphs 9 and 10).

5. Mr Awoyemi told the Tribunal that when the family had originally applied, and were granted Family Allowance, three Centrelink officers at Ballarat had dealt with the application.  He could not understand, in such circumstances, why their decision was subsequently reversed.  He told the SSAT that after initially receiving payments he was told that it had been a mistake.  The payments had been of great financial assistance to the family (T2, p5).  He further understood that he did not fall into the categories of "resident" nor "citizen" but considered that he was an "inhabitant of Australia".  He pointed out that the application form did not contain any qualifying statements with regard to the word "inhabitant".  As far as he was concerned an inhabitant was "somebody who lived in a place".  As far as his Student Class Visa Status 560 was concerned he considered that it should be classed as being a "humanitarian" class visa.  This was because he was in receipt of an Australian Government Scholarship the purpose of which was to enable him to study Forestry in Australia with the view to his returning to his homeland, Nigeria, to assist in program developments there.  He felt that as the underlying rationale of this study program was humanitarian in nature he should be classed as a person with a "humanitarian" visa.  Currently he and his wife were experiencing financial difficulties in supporting the family on $600 per fortnight.  They were eligible for child care support.  His stay in Australia had been extended into the year 2001 to enable him to complete his studies.  However his scholarship did not cover the return air fares that the family require on completion of his studies.

6. The issue before this Tribunal is whether Mr Awoyemi can be considered to be an Australian resident or holder of an approved temporary visa such that allows him to qualify for the entitlement under review as an "inhabitant of Australia".  The Tribunal, whilst acknowledging the underlying reasoning of Mr Awoyemi's submissions, indicated that it was not in a position to review his visa classification.  The Centrelink decision making and the Tribunal's review processes had to be based upon the classification of visa CLASS TU STUDENT P137 SUB CLASS 560 (T7, p31). 

7. Section 838(1)(b) Qualification for individual family allowance, inter alia that a person is qualified for family allowance if the person is an inhabitant of Australia.  Under "General definitions" s. 23(1) of the Act "inhabitant of Australia" means:

   "(a)      an Australian resident; or

   (b)the holder of a temporary visa declared in writing by the Minister to be an approved visa for the purposes of this definition.

   Note 1:  For holder and temporary visa, see subsection 7(1).
   …"

8. Subsection 7(1) of the Act provides that:

   "In this Act, unless the contrary intention appears:
   Australian resident has the meaning given by subsection (2);
   …
   holder, in relation to a visa , has the same meaning as in the Migration Act 1958;
   …
   permanent visa; special category visa; special purpose visa; temporary visa and visa have the same meaning as in the Migration Act 1958;
   …".

9. Section 7(2) of the Act provides that:

   "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)the holder of a special category visa who is likely to remain permanently in Australia;

   (iv)the holder of a special purpose visa who is likely to remain permanently in Australia.

   Note:  For holder, permanent visa and special purpose visa see subsection (1)."

10. Mr Awoyemi and his wife are citizens of Nigeria not Australia and therefore do not meet the requirements pursuant to s. 7(2)(b)(i) of the Act. He and his wife hold temporary visas and therefore do not meet the requirements of s. 7(2)(b)(ii) of the Act. Neither do they meet the requirements of s. 7(2)(b)(iii) or (iv). The Migration Act 1958 defines "special purpose visa" as:

    "5(1)     In this Act, unless the contrary intention appears:
    …
    special purpose visa has the meaning given by section 33;
    …"

11. Sections 32 and 33 of the Migration Act 1958 provides that:

    "32(1)   There is a class of temporary visas to be known as special category visas.

    (2)       A criterion for a special category visa is that the applicant is:

    (a)       a non-citizen:

    (i)who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and

    …
    33(1)    There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas.

    (2)       Subject to subsection (3), a non-citizen is taken to have been granted a special purpose visa if:

    (a)       the non-citizen:

    (i)        has a prescribed status; or

    (ii)is a member of a class of persons that has a prescribed status; or

    (b)       the Minister declares, in writing, that:

    (i)the non-citizen is taken to have been granted a special purpose visa; or

    (ii)persons of a class, of which the non-citizen is a member, are taken to have been granted special purpose visas…"

Referring to the Commonwealth of Australia Gazettes, (Exhs. R1 and R2) the Tribunal confirmed that as holders of CLASS TU STUDENT P137 SUB CLASS 560 visas neither Mr nor Mrs Awoyemi hold special category or special purpose visas, as persons likely to remain permanently in Australia, as provided for by these Declarations.

1. Therefore, as argued by Ms Cunningham, Mr Awoyemi is not qualified to receive Family Allowance and Family Tax payments as he is not an "inhabitant of Australia". Section 41 of the Act states that:

   "Before a social security payment is payable to a person under this Act:
   (a)       the person must be qualified for the social security payment; and

   (b)there must be nothing in this Act that makes the social security payment not payable to the person (for example, a waiting period provisions, a multiple entitlement exclusion provision or a compensation preclusion provision)." 

Section 880 of the Act provides for cancellation in circumstances where there is no entitlement.

"If the Secretary, is satisfied that family allowance is being, or has been, paid to a recipient to whom it is not, or was not, payable under this Act, the Secretary is to determine that the family allowance is to be cancelled or suspended."

1. It is unfortunate that in seeking assistance from the Ballarat office of Centrelink Mr Awoyemi was incorrectly granted Family Allowance and Family Tax Payments on 31 January 2000 (T10, p38) only to have the needed payment suspended on 28 February 2000 (T14, p45) and finally cancelled on 21 March 2000 (T18, pp64-65).  Mr Awoyemi had correctly filled out his details on the application form with regard to his residency status where he correctly affirms that he had permission to stay in Australia.  A Note alongside this item states that "This includes Government sponsored students who are on a temporary visa and may be entitled to Childcare Assistance." (T5, p15).  This statement could mislead an applicant to assume that other entitlements were possible.

2. Accordingly, for the reasons given, the decision under review will be affirmed.

   I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of
   Adjunct Professor L.S. Rodopoulos, Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  14 November 2000
   Date of Decision  30 November 2000
   For Applicant  self represented

   For the Respondent                 Ms K. Cunningham, departmental advocate