Bednarski and Secretary, Department of Social Services (Social services second review)

The applicant, a permanent resident of Poland who had permanently departed Australia in 1997, claimed an Australian age pension. The dispute concerned the calculation of his Australian Working Life Residence (AWLR) by the Department of Social Services, which was affirmed by the Administrative Appeals Tribunal (AAT). The applicant did not dispute the inclusion of his Polish pension as income or the exchange rate calculations, nor did he dispute his eligibility for an Australian age pension solely by virtue of the Polish Agreement, which forms part of Australian law. The matter before the Tribunal was whether the Department's assessment of the applicant's AWLR at 343 months was correct.

The legal issues before the Tribunal were whether the applicant met the residence requirements for an age pension claim made while he was outside Australia and a resident of Poland, and how the provisions of the Social Security (International Agreements) Act 1999 (Cth), specifically Schedule 25 (the Polish Agreement), applied to his claim. The Tribunal was required to determine the correct application of Article 10 of the Polish Agreement, which deems a claimant to be an Australian resident and in Australia for the purpose of lodging a claim if they are an Australian resident or resident of Poland, and in Australia or Poland, provided they have been an Australian resident at some time. Additionally, the Tribunal had to consider Article 11, which allows for the "totalisation" of periods of Australian residence with periods of insurance in Poland to meet qualifying periods for an Australian benefit.

The Tribunal reasoned that the applicant was eligible for the Australian age pension only by virtue of the Polish Agreement. Article 10 of the Agreement provided that if a person would otherwise qualify for an Australian benefit but for not being an Australian resident and in Australia on the claim date, they would be deemed to be so if they were a resident of Australia or Poland and present in either country, and had been an Australian resident at some point. The applicant met these conditions. Article 11 then addressed the calculation of qualifying periods. It stipulated that if a person had a period of Australian residence less than that required by Australian legislation, and a period of Polish insurance, the Polish insurance period could be deemed to be a period of Australian residence solely for the purpose of meeting minimum qualifying periods. The applicant had departed Australia permanently in 1997, and his AWLR was calculated as 343 months. The Tribunal found no error in the Department's calculation of the AWLR.

The Tribunal affirmed the decision under review, concluding that the Department's assessment of the applicant's AWLR at 343 months was correct.