Bayahow and Secretary, Department of Family and Community Services

[2004] AATA 1343

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1343

ADMINISTRATIVE APPEALS TRIBUNAL         Nº V2004/850

GENERAL ADMINISTRATIVE  DIVISION

Re:          FADUMA BAYAHOW

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:              16 December 2004

Place:             Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) Regina Perton

Member

SOCIAL SECURITY – special benefit – residency – former refugee ‑ New Zealand citizen – newly arrived resident – waiting period – lack of discretion – decision affirmed

Social Security Act 1991 ss 7, 729, 739A

Social Security (Administration) Act 1999 ss 29, 30, 31A

Migration Regulations 1994 Schedule 2

REASONS FOR DECISION

16 December 2004  Regina Perton, Member

1.       This is an application by Faduma Bayahow (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 18 June 2004.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 5 April 2004 that the applicant, a citizen of New Zealand, was ineligible for special benefit as she did not meet the Australian residence requirement for such a payment.

2.       At the hearing on 11 October 2004, Ms Miriyana Trajkovska of the Westcare Family Housing Program represented the applicant.  Ms Elizabeth King, a Centrelink advocate, represented the respondent. 

3.       The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T20).

BACKGROUND

4.       The applicant, who was born in Somalia, moved to New Zealand in 1997 with her husband and four dependent children.  A fifth child was born in New Zealand in 1999.  She and her husband separated in August 1999.  After obtaining New Zealand citizenship, the applicant moved to Australia on 6 February 2002 accompanied by her five children.

5.       On 5 April 2004, the applicant lodged a claim for Special Benefit which was refused on the same day on the basis that the applicant did not meet the prescribed residence requirements.  Changes were made to the Social Security Act 1991 (the Act) in February 2001 which changed the eligibility of New Zealand citizens to Australian benefits, requiring them to have permanent residence and a two year qualifying period. 

6.       On 15 April 2004, the applicant sought review of the delegate’s decision.  The reasons for seeking review were stated as follows:

I believe this decision is incorrect because upon arriving in Australia and becoming part of a support program, my support worker was informed that once I have been in Australia for 2 years (without applying for permanent residence) I can apply to receive the Special Benefit payments.  I have waited for the 2 year period and now I am receiving other information that this is not the case.  That I now need to apply for permanent residence in order to receive Special Benefit payments.  To my knowledge there is a criteria (the points system) in order to be successful to become a permanent resident.  If the criteria is not met then I can then not receive permanent residence.  I am only on the Family Tax benefit, a single parent with five children. I would like my case to be reviewed as soon as possible.

7.       On 4 May 2004, an authorised review officer affirmed the delegate’s decision.  On 20 May 2004, the applicant sought further review by the SSAT which affirmed the decision on 18 June 2004.  On 26 July 2004, the applicant lodged an application with the Tribunal for review of the SSAT decision.

EVIDENCE

8.       At the hearing, the applicant told the Tribunal that she, her husband and children had been accepted as refugees by the New Zealand Government in 1997.  They had been living in a refugee camp in Kenya after fleeing Somalia.  The applicant is now legally separated from her husband who she believes remains in New Zealand, although she does not know where he is.  He has no contact with the children and provides no financial support for the applicant or the children.  The applicant’s parents and three sisters live in Australia.  Two of her sisters are working, as are their husbands.  They have five and seven children respectively.  Her sisters help her out financially as much as they can but with large families themselves and limited incomes, it is difficult for them.  Her sisters sponsored their parents to Australia and are providing support for them as well.  The applicant spoke of her and her children’s safer lives in Australia, her family ties and her hopes for their future.  She said that she and her family had been unaware of the changes to social security legislation in 2001 and had mistakenly believed she would be able to obtain financial support in Australia as a New Zealand citizen who is a former refugee.

CONSIDERATION OF THE ISSUES

9. Section 729 of the Act provides for the qualification of special benefit as follows:

729.(1)  A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.

729.(2)  The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a)no social security pension is payable to the person during the period; and

(b)no other social security benefit is payable to the person for the period; and

…

(f)        the person:

(i)is an Australian resident; or

(v)becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph; and

(g)      if the person is:

(i)the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which this subparagraph applies; and

(ii)a person to whom subsection (2A) applies;

the person meets the additional criteria set out in paragraph (2B).

10. Section 7 of the Act provides for Australian residence as follows:

7.(1)  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", "temporary visa" and "visa" have the same meaning as in the Migration Act 1958;

“protected SCV holder” has the meaning given by subsections (2A), (2B), (2C) and (2D).

"qualifying Australian residence" has the meaning given by subsection (5);

…

7.(2)  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.

7.(2A)  A person is a protected SCV holder if:

(a)the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or

(b)the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day.

7.(2B)  A person is a protected SCV holder if the person:

(a)was residing in Australia on 26 February 2001; and

(b)was temporarily absent from Australia on 26 February 2001; and

(c)was a special category visa holder immediately before the beginning of the temporary absence; and

(d)was receiving a social security payment on 26 February 2001; and

(e)returned to Australia before the later of the following:

(i)the end of the period of 26 weeks beginning on 26 February 2001;

(ii)if the Secretary extended the person’s portability period for the payment under section 1218C—the end of the extended period.

7.(2C)  A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:

(a)       the time is during the period of 3 years beginning on 26 February 2001; or

(b)the time is after the end of that period, and either:

(i)a determination under subsection (2E) is in force in respect of the person; or

(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

7.(2D)  A person who, on 26 February 2001:

(a)was residing in Australia; and

(b)was temporarily absent from Australia; and

(c)was not receiving a social security payment;

is a protected SCV holder at a particular time if:

(d)       the time is during the period of 12 months beginning on 26 February 2001; or

(e)       the time is after the end of that period, and either:

(i)at that time, a determination under subsection (2E) is in force in respect of the person; or

(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

…

7.(6)  A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement, a seniors health card or a health care card if, and only if, the person:

(a)       resides in Australia; and

(b)       is either:

(i)        a refugee; or

(ii)       a former refugee.

…

Section 739A of the Act provides for the newly arrived resident’s waiting period:739A.(1)  Subject to this section, a person who, on or after the commencement of this subsection:

(a)enters Australia; or

(b)becomes the holder of a permanent visa; or

(e)becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;

is subject to a newly arrived resident's waiting period.

11. Section 739A(3) prescribes the waiting period as 104 weeks.

12. Sections 29, 30 and 31A of the Social Security (Administration) Act 1999 (the Administration Act) set out further requirements for persons claiming special benefit as follows:

29.(1) Subject to sections 30, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:

(a)       is an Australian resident; and

(b)       is in Australia.

29.(2) Subject to sections 30, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

30.  A claim for special benefit may only be made by a person who:

(a)       is in Australia; and

(b)       satisfies one of the following subparagraphs:

(i)the person is an Australian resident;

(ii)the person has a qualifying residence exemption for special benefit;

(iii)the person holds a visa determined by the Minister to be a visa to which this subparagraph applies.

…

31A.  Despite paragraph 29(1)(a), a person who is not an Australian resident may make a claim for a social security payment or a concession card if:

(a)the person is a special category visa holder residing in Australia; and

(b)in order to qualify for the payment or concession card concerned, the person is not required to be an Australian resident if the person is a special category visa holder residing in Australia.

13. The applicant is a citizen of New Zealand. As such, she entered Australia on a subclass 444 visa, a long term temporary visa, the criteria for which are set out in Schedule 2 of the Migration Regulations 1994:

444.2…The only criteria are those set out in paragraph 32 (2) (a) of the Act and in regulation 5.15A.  Under paragraph 32 (2) (a) of the Act, the requirements are: that the applicant is a New Zealand citizen; that the applicant holds, and has shown an officer, a New Zealand passport that is in force; and that the applicant is neither a behaviour concern non-citizen nor a health concern non-citizen.

…

444.511 Temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen.

14. The applicant is neither an Australian citizen nor the holder of a permanent visa. She does not meet any of the definitions of a protected SCV holder. The applicant arrived in Australia for the first time in February 2002. Therefore, the concessions that exist for persons who were in Australia on or before 26 February 2001 do not apply to her. While she entered New Zealand as a refugee, she did not enter Australia on that basis. The exemptions set out in s 7(6) of the Act for refugees apply only to persons resettling directly in Australia on humanitarian visas. They do not apply to persons entering Australia as citizens of New Zealand. Therefore, she fails to meet the exemptions for residence set out in s 7(6) of the Act.

15.     The Tribunal finds that the applicant does not meet the criteria set out in the legislation cited above to qualify for payment of special benefit.

16.     Given the circumstances in which other members of the applicant’s family entered Australia, namely as refugees, and given that the legislative amendments altering the entitlements of New Zealand citizens in Australia were introduced less than a year before the applicant’s move to Australia, the reasons for her mistaken belief that she would qualify for support are understandable.  While the Tribunal is sympathetic to the plight of the applicant and her children, particularly given the reasons behind her move to Australia, it has no discretion to go outside the legislative provisions. 

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  11 October 2004
Date of decision:                   16 December 2004

Advocate for applicant:         Ms Miriyana Trajkovska, Westcare Family Housing Program

Advocate for respondent:      Ms Elizabeth King, Centrelink