Chantalle Cropp and and Secretary, Attorney-General's Department
[2015] AATA 246
•24 March 2015
[2015] AATA 246
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/5222
Re
Chantalle Cropp
APPLICANT
And
Secretary, Attorney-General's Department
RESPONDENT
File Number(s)
2014/5224
Re
Matthew Cropp
APPLICANT
And
Secretary, Attorney-General's Department
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 24 March 2015 Date of written reasons 24 April 2015 Place Sydney The decision under review is affirmed.
........................................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – Australian victims of terrorism overseas payment – residence requirement – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 1061PAA
Social Security Amendment (Supporting Australian Victims of Terrorism Overseas Act 2012 (Cth)
REASONS FOR DECISION
Professor R McCallum AO, Member
24 April 2015
BACKGROUND
Mr and Ms Cropp were born in Australia in 1969 and 1971 respectively, and they married in 1993. Since that year, they have spent most of their time overseas, although they have returned to Australia for holidays and family events.
On 26 November 2008, they were living at the Oberoi Trident Hotel in Mumbai, India, where Mr Cropp was employed as an executive chef at the Oberoi Hotel Group. On that day, 26 November 2008, right up to 28 November 2008, that hotel and surrounding hotels suffered a terrorist attack.
I have read the material supplied by Ms Cropp explaining her fears and concerns when she was in the hotel and had to hide, and when Mr Cropp was outside and could not get in. I have every sympathy for this married couple. I can only imagine the terror of this type of event, particularly when worried about loved ones. None of us want any of our nearest and dearest, or for that matter anyone, to go through a terrorist attack.
On 20 March 2014 Mr and Ms Cropp lodged an application for an Australian Victims of Terrorism Overseas Payment (AVTOP). These are payments which are given to Australians who have been closely affected either personally, or through the death of a close family member, by an overseas terrorist attack.
On 4 April 2015 Mr and Ms Cropp were advised that their claim had been rejected on the basis they were not Australian residents at the time of the attacks.
On 12 May 2014 an Authorised Review Officer (ARO) affirmed the decision that Mr and Ms Cropp were not eligible for an AVTOP.
On 6 August 2014 Mr and Ms Cropp lodged an application with the Social Security Appeals Tribunal (SSAT).
On 16 September 2014 the SSAT affirmed decision of the ARO.
LEGISLATION
The AVTOP was enacted by the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas Act 2012 (Cth).
No terrorist attacks were designated under the legislation at the time. The Government of the day said they wanted it to be place for future terrorist attacks.
The then opposition leader, the Hon. Mr Tony Abbott, who is now the Prime Minister, said in a press release on 30 August 2012 that he felt that the legislation should apply to all Australians and he felt that the legislation should be broader.
Not long after coming into office in September 2013, the Prime Minister made a relevant declaration under the Social Security Act 1991 (Cth) (the Act), which amongst other things, designated the Mumbai terrorist attacks of 26 to 28 November 2008 as terrorist attacks.
This gave Mr and Ms Cropp hope that perhaps they could receive this social security payment.
These payments are primarily governed by s 1061PAA of the Act. Subsection (1) sets out the criteria for qualification for an AVTOP. The relevant paragraph before the Tribunal is para (c) of sub (1) which provides as follows:
(c) the person:
(i) is an Australian resident on the day the terrorist act occurred; or
(ii) is covered by a determination under subsection (6).
EVIDENCE
Ms Cropp appeared at hearing by telephone. She said once again, as she stated before the SSAT, that she and her husband were not Australian residents on the date of the Mumbai attacks, and therefore the only way that they can receive the payments is if a declaration was made under subsection (6). In fact, Ms Cropp wrote to the Attorney-General who has power to make such declarations broadening the class of recipients, and the Attorney-General has declined to do so.
CONSIDERATION
While I stand in the shoes of the Secretary of the Department of Social Security, I do not stand in the shoes of the Attorney-General, and I have no powers to make the declaration.
I have deep sympathy for Mr and Ms Cropp. They have with tenacity and feeling sought to assert their rights and what they perceive to be their rights, what they regard as fair, up through the processes of the Department of Social Security, to the Social Security Appeals Tribunal and to this Tribunal.
I wish Mr and Ms Cropp to know that I think they are an example in the sense that all of us should be prepared to pursue what we perceive to be our rights and to argue for what we regard to be fair in all of the circumstances.
In the case before me, I agree with the respondent. Neither Ms Cropp nor Mr Cropp were Australian residents on the days of the terrorist attack in Mumbai. As the Attorney-General has elected not to make a declaration under s 10061PPA(6), Mr and Mrs Cropp do not qualify for an AVTOP.
However, may I conclude by wishing Mr and Ms Cropp and their daughter well in the future, I do hope that they recover from the medical and other issues which they are suffering.
DECISION
The decision under review is affirmed.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member .............................[sgd]...........................................
Associate
Dated 24 April 2015
Date(s) of hearing 24 March 2015 Applicant By phone Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Statutory Construction
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Standing
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