Campbell and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 1040

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1040

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2615

GENERAL ADMINISTRATIVE DIVISION )

Re KIM CAMPBELL

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date20 November 2008

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..................[Sgd].....................

MEMBER 

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – sickness allowance – applicant not an Australian resident – applicant not the holder of a protected special category visa - applicant not exempt from residence requirement – applicant not qualified for sickness allowance – decision under review affirmed.

Social Security Act 1991 ss 7, 666

Migration Act 1958 ss 30, 32

REASONS FOR DECISION

20 November 2008  Mr RG Kenny, Member

APPLICATION

1.      On 14 February 2008, Kim Campbell lodged a claim with Centrelink for sickness allowance, a form of income support paid under the Social Security Act 1991 (“the Act”).  Her claim was rejected on 21 February 2008 by a Centrelink officer, on behalf of the Secretary, Department of Education, Employment and Workplace Relations (“the respondent”).  That decision was affirmed by an authorised review officer on 7 April 2008 and, in turn, by the Social Security Appeals Tribunal on 29 April 2008.  Ms Campbell has sought review of the decision by the Administrative Appeals Tribunal (“the Tribunal”).

CONTENTIONS

2.      Ms Campbell came to Australia several times before 2006 and stayed for short periods of about a week.  On 19 June 2006, she arrived in Australia from New Zealand with the intention of staying here and was granted a special category visa subclass 444 on her arrival.  She commenced work almost immediately but began to experience back pain which prevents her from continuing in work. Ms Campbell has commenced proceedings against her former employer in respect of her back complaint.  Ms Campbell is a New Zealand citizen and carries a New Zealand passport.  She is not an Australian citizen.  She confessed to being very confused about the visa system generally and her own visa situation in particular.  She referred to the length of time that she had been in Australia since mid 2006 before lodging her claim and submitted that her working for that time and paying taxes should be sufficient for her to be treated as an Australian resident.  

3.      Ms Campbell also referred to a document published by the National Welfare Rights Network.  She contended that it contained material which supported her position.

4. Mr Hamilton submitted that the terms of s 666 of the Act were not met by Ms Campbell in that she is not an Australian resident and is not exempted from that requirement.

CONSIDERATION

5. To qualify for sickness allowance, all of the requirements in s 666(1) of the Act must be met. One of these is that the person seeking the allowance must be an Australian resident. The term Australian resident is defined in s 7(2) of the Act. It reads:

“s7 (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.”

6.      While Ms Campbell resides in Australia, it is not disputed that she is not an Australian citizen and not the holder of a permanent visa[1].  Also, it is not disputed that her subclass 444 visa makes her the holder of a special category visa (SCV)[2]. However, that is not sufficient to satisfy s 7(2)(b)(iii) of the Act as this requires her to have a “protected” SCV. In the Act, ss 7(2A) to 7(2)(G) set out the criteria for satisfying the term protected SCV.  In each case, reference is made to a period of residence in Australia on or around 26 February 2001.  Ms Campbell does not meet any of those requirements.  

[1] For the meaning of permanent visa, see the Act s 7(1) and the Migration Act 1958 s 30.

[2] For the meaning of special category visa, see the Act s 7(1) and the Migration Act 1958 s 32.

7. An alternative means of satisfying s 666(1) of the Act arises where the person is exempt from the residence requirement under s 7(7) of the Act. Exemption under that provision only arises if the person had been residing in Australia for a continuous period of at least 10 years prior to the period to which the claim relates.  Ms Campbell has been residing in Australia for a little over 2 years and does meet the exemption requirement.

8. I have noted the documentation from National Welfare Rights Network. As I read that material, it contains nothing inconsistent with the statutory provisions I have dealt with above. I have also noted the contentions raised by Ms Campbell concerning her working and paying taxes in Australia. However meritorious her desire to work may be, it does not assist her in satisfying the residential requirements of the Act. As Ms Campbell does not satisfy these, she does not qualify for payment of the sickness allowance.

DECISION

9.      The decision under review is affirmed

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed: ......................[Sgd].....................................................
             Elizabeth Young, Research Associate

Date/s of Hearing  18 November 2008
Date of Decision  20 November 2008
The applicant was self-represented
For the Respondent                  Mr B Hamilton, Departmental Advocate