Bastam and Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 866

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 866

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2628

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANNEMARIE BASTAM AND MAX BASTAM

Applicant

And DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION ON THE PAPERS

Tribunal Ms A F Cunningham (Senior Member)

Date7 December 2011

PlaceHobart

Decision The decision under review is affirmed.

Sgd Ms A F Cunningham
  Senior Member

CATCHWORDS

SOCIAL SECURITY – age pension – applicants residing in South Africa at date of claim – no International Agreement with South Africa – decision under review affirmed

Social Security Act 1991

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

7 December 2011 Ms A F Cunningham (Senior Member)

1.      The applicants have sought the review of a decision granting them age pensions from 11 March 2008 and not from an earlier date.  The original decision was made by a Centrelink officer, and has been affirmed on review by an Authorised Review Officer and the Social Security Appeals Tribunal (SSAT) on 15 June 2011.

2.      The applicants have requested that the Tribunal determine their application on the written material provided without the need for a hearing.  No further written submissions were received in support of the receipt of the applicants application for review, which states as the reasons for the application “entitlement, or eligibility to age pension was denied while living in South Africa.”

3.      The T documents have been received in evidence.  The respondent has submitted a detailed Statement of Facts and Contentions with attachments which includes relevant legislation, extracts from the Guide to the Social Security Law, the Universal Declaration on Human Rights and copies of file records relating to the decision to grant age pension in March 2008.

4.      The T documents contain copies of the correspondence from the applicants addressed to the respondent and Members of Parliament and their responses. 

5.      The scope of the SSAT’s jurisdiction was detailed in its decision and there is no reason to repeat that advice.  This Tribunal is similarly limited to a consideration of the decision under review in accordance with the relevant legislation.  The relevant law is found in the provisions of the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (International Agreements) Act 1999.

6.      The applicants’ claims for age pension were lodged on 12 March 2008 and were granted effective from 11 March 2008, being the date when they made their contact with Centrelink indicating an intention to claim. 

7.      The applicants contend that they should have been paid age pension whilst residing in South Africa on the basis of their Australian citizenship. 

8.      Their claim forms state that Max Bastam was born on 8 September 1930 and Annemarie Bastam was born on 26 November 1931.  They resided in South Africa between 1975 and 2008 and thus reached pension age whilst residing in South Africa.

9. On 15 February 1996 Mr and Mrs Bastam wrote to the Department of Social Security in Hobart after having been informed by the Australian High Commission in Pretoria that they needed to be residing in Australia in order to claim age pensions. This advice was confirmed in writing by the Department of Social Security on 11 April 1996. There is no evidence that the applicants lodged claims for age pension at any time prior to 12 March 2008. They have appealed the decision to pay age pensions from 11 March 2008 and not earlier. The SSAT found that the applicants could not claim an age pension whilst residing in South Africa as a result of the operation of section 29 of the Social Security (Administration) Act 1999 and in the absence of an international agreement.  The SSAT affirmed the decision to grant age pensions from 11 March 2008. 

10. There is no argument that the applicants meet the qualification provisions for age pension as contained in section 43 of the Act, namely 10 years Australian residency and having reached pension age. However in order to make a valid claim, a person needs to be in Australia and an Australian resident at the time of lodging any claim as required by section 29 of the Administration Act. The exemption provisions of section 29 do not apply in this case.

11. Section 6 of the Social Security (International Agreements) Act 1999 provides that where there is an international agreement, the provisions of that agreement over-ride the Social Security law.  In effect, where the applicant is a resident of the agreement country and physically present in that country, they may be eligible to apply for an Australian age pension.  There is however no international agreement and never has been between Australia and South Africa. 

12. As the only claims lodged by the applicants were made on 12 March 2008, the qualification provisions which include the application of section 29 of the Administration Act apply with respect to that claim. The date for commencement of a Social Security payment is made in accordance with Part 3, Division 3 of the Administration Act. Clause 3 of Schedule 2 of the Administration Act provides that where a person is qualified on the day on which a claim is made the person’s start date is that day. Section 13 allows the date of contact, in this case 11 March 2008, to be taken as the day on which the applicants made their claims. None of the back-dated start date rules in Schedule 2 apply in the applicants’ case.

13. The applicants do not contend that they were Australian residents prior to 10 March 2008 when they returned to live in Australia. Nor do they contend that they were physically present in Australia between turning pension age and 10 March 2008. There is no evidence upon which a finding could be made that the applicants satisfied the definition of Australian residents in section 7 of the Act at any time between 1975 and 10 March 2008. They reported to the SSAT that they retained no business, residential, personal or financial ties of significance to Australia while living in South Africa.

14. The role of this Tribunal is to undertake a de novo review of the decision under review. Section 43 of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal exercises all of the powers and discretion conferred on the original decision-maker by the Social Security law. 

15.     The applicants have failed to satisfy the Tribunal that the decision under review is incorrect.  The Tribunal has carefully reviewed all of the evidence and finds that the decision to pay the applicants age pension from 11 March 2008 is correct, and accordingly affirms the decision under review. 

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member).

Signed: Colleen Maguire
             Associate

Date of Hearing on the Papers         4 October 2011
Date of Decision   7 December 2011