Chen and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 1033

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/505
GENERAL ADMINISTRATIVE DIVISION
  Re:         MIN HAO CHEN
  Applicant

And: SECRETARY DEPARTMENT OF
FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             20 December 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member
SOCIAL SECURITY – residential qualification – whether applicant entitled to receive disability support pension – when applicant first had a continuing inability to work – whether the applicant satisfied subpar 94 (1) (e) of the Social Security Act 1991 (Cth)
Social Security Act 1991 (Cth), ss7(2), 94(1)
Migration Regulations 1993

REASONS FOR DECISION

M.J. Carstairs, Member

This is an application by Min Hao Chen (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT), affirming a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent). The delegate decided that the applicant was not qualified for disability support pension, as he did not meet the residency requirements for that payment.
At the hearing the applicant represented himself and was assisted by an interpreter in the Mandarin language. The respondent was represented by one of its advocates, Mr D Perdon.
The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) as well as a statement by the applicant translated and signed on 10 November 2000 (Exhibit 4). The applicant provided medical reports and clinical notes from the Federation of Chinese Associations (Exhibit B) and from St Vincent's Hospital (Exhibit C) as well as a report from Dr Robert Chau dated 1 September 2001 (Exhibit E). Reports and clinical notes from Brunswick Medical Group (Exhibit 2), and reports and clinical notes Brunswick Community Clinic (Exhibit 3) were also in evidence.
BACKGROUND
The applicant came to Australia from China in 1988 on a student visa. After the Tiananmen Square incident he was issued with various visas to enable him to stay in Australia and in August 1994 he was granted permanent residency. He travelled to China from September 1994 to May 1997.
On 16 November 1998 the applicant lodged a claim with Centrelink for disability support pension. This was rejected. The applicant lodged another claim on 16 July 1999 (T31). The second claim was rejected on 9 December 1999, on the grounds of the applicant's residency. The applicant sought review of the decision rejecting the second claim and on 23 December 1999 an authorised review officer affirmed the original decision. When the matter was reviewed by the SSAT on 2 March 2000 the SSAT affirmed the decision to reject the claim for disability support pension. The applicant appealed to the Administrative Appeals Tribunal on 28 April 2000.
EVIDENCE
The applicant's statement (Exhibit 4)set out the following:
I, Min Hao Chen of 112 Rupert St. West Footscray, hereby make the following statement in respect of my pension appeal. The statement has been written by Mr Perdon from my answers at an interview. I came to Australia in 1988 and was studying full time until about February or March 1989. I then worked at Finley Engineering as a machine operator full-time for about 5 or 6 months. I then worked at Kenworth Trucks as a machinist full-time for about a year. I then worked in a small engineering factory making Toyota parts as a machinist full-time for 1 or 2 months. Later I was sacked due to the recession. I then worked at the National Budget Hotel as a room attendant/cleaner not full-time, about 9am to 4pm or 5pm. At first 5 or 6 days a week but sometimes 3 days. After I came back to Australia in 1997 I worked for a toilet maker in Brunswick as a labourer for 3 or 4 days. I left there because the work was too heavy. In 1993 or 1994 I was attending Brunswick Community Clinic Albion St, in 1994 Complete Health Care Centre Mt Alexander Rd, in 1993 and maybe once in 1994 Brunswick medical group Blyth St, in 1993 and maybe 1994 St. Vincents Hospital, in 1993 and 1994 Royal Melbourne Hospital. I have received yesterday some medical documents from Victoria Legal aid and have provided copies. When I came back to Australia in 1997 I saw several doctors, maybe Dr Lo, maybe Dr Bey and maybe St Vincent's Hospital. This was a few months after I got back, as I still felt unwell and wanted treatment. I also went to Monash Medical Centre in Clayton as I was living there about 1998. Also a medical centre in Oakleigh maybe end of 1997. I have seen Dr Pereira since 1998 and still see him now regularly. I also still see Dr Lo and Dr Bey for treatment. I went overseas in 1991 to see my mother in Hong Kong. She lives in China but my brother lives in Hong Kong. I mostly paid for this trip myself. I intended to have a short visit to meet family. I was in Australia until 1994. In 1993 I had a psychological problem. At first they could test for what sort of virus I had and I was very worried. My brother-in-law came to Australia from America about August or September 1993 to look after me. I was nervous, always on the phone, flu like infection. I said I had a serious illness. He came to see what had happened because I was calling them in the middle of the night. He was here until January 1994. In July/August 1994 my mother and sister visited me on a 3 month visa. My brother-in-law accompanied me to the doctors. Me and my mother left Australia in September 1994. My mother's visa was very limited. I didn't feel better, I felt worse in September. I was alone in Australia and I was making telephone calls which annoyed them. At that time I did not feel well, I felt a bit depressed. My mother was concerned and asked me to stay with them in China. The fares were paid mostly by my brothers and sisters, partly from me. They had already bought the ticket. My brother in Hong Kong and another brother in America helped to support me. The first time the ticket was one way, my mother chose it. I thought I would be there 2½ years. I wanted to see Chinese doctors and try Chinese medecine (sic). I only had a 3 year visa. I lived in China with my mother. My brother owned the house. I did not pay rent. I had been renting in Australia. I had no family in Australia. I lived in China with my mother. I did not work in China because the wages were to low and because I didn't feel very well. I had no bank accounts in China and none in Australia. I had a TV and furniture in Australia but I sold them. I had a car in Australia but it was damaged in an accident due to my illness and I sold it. I did exercise in China, slept, watched TV, saw doctors. I came back to Australia in 1997 because the doctors had not found anything and I had a limited visa and I felt very reliant on my family. I booked the ticket but my brother paid for it. I left Australia again about March 2000. I was away about 3 months, I went to China. I stayed with my family. This time I wanted to go anywhere to seek treatment, not just Shanghai. I didn't intend to stay away very long. This time it was a return ticket. I paid for it myself. I borrowed from social security. The above has been read to me in the Mandarin language and is true and correct in every detail. Signed Chen Min Hao date 10/11/00
The applicant told the Tribunal that he commenced English language studies in Australia in 1988 but did not achieve a qualification for proficiency in English. However he had no problem getting jobs until the recession in the early 1990's. He said that in 1992 he was able to do any job and had no physical problems at all. During 1993 he said that he worked at a hotel but the job ceased when trade slowed down. The applicant also sustained a mild injury to the hand in that job. He was paid job search allowance after he ceased working at the hotel and he registered for work at the Commonwealth Employment Service. He said that in May 1993 he was diagnosed with anxiety and gastritis but was not treated until August 1993. He said that in May or June of 1993 he started to suffer from colds or a long-term flu. He said he was "a bit anxious", as the flu would not go away. He said he had a "little stomach problem" but that it disappeared around Christmas 1993 or January 1994. He acknowledged that he was worried that there was something wrong that doctors could not see. He said that he went to many doctors but they thought that he would "be all right soon".
He was granted permanent residency in August 1994 and then went back to China, as he wanted to see his mother and to seek treatment over there. He had kidney stones removed while in China and after that he said that he felt much better. But he could not work in China, as the pay was too low. He said that about this time he had lost his ability to work and that age was a factor as he was then over 40. When he returned to Australia in 1997 he worked for a couple of weeks but was very tired. He said that in 1998 he said he was diagnosed with acute anxiety neurosis, IgA neuropathy and herpes and that he had had no diagnoses before that. He said he could not understand that it was now being said that he already suffered these conditions in 1993.
The applicant said that he was seeking disability support pension, as it was more money than his current payment and he would use the extra money to seek treatment and get back on the path to working again.
A report from Dr D. Lo, dated 16 October 2000 (Exhibit B), stated that the applicant had been her patient since 30 August 1993. He was diagnosed with IgA nephropathy by Dr I Main in October 1998, though the applicant had developed symptoms of this condition in September 1994. A report from the Complete Health Care Centre dated 20 October 2000 (Exhibit B) stated that the applicant had been seen between June and September 1994 and his problems were "various infections" and "superficial gastritis" treated with Flagyl but that otherwise there was nothing remarkable in the history. All conditions were "treatable and self limiting". A report from Dr T Bay (Exhibit B) dated 25 October 2000 stated:
Min Hao Chen attended this clinic from September 1993. During 1993 he had several tests, which were basically normal. At this stage (1993) he was not disabled.
In the medical reports from Brunswick Medical Group (Exhibit 2) Dr T Bay had reported, in 1993, as follows:
…(he) presented to us on numerous occasions with what I feel is probably microphobia, but as he is losing weight and very distressed re his symptoms I am grateful for your assessment as well.
Mr Chen, who has been in Australia for five years, seems to have been quite well until earlier this year. He had intercourse with a prostitute in May 1993 and since then has been fearful of having caught HIV infection and has had numerous tests for this. All tests have been negative. His main symptoms have been night sweats, some weight loss recently, indigestion and abdominal aches for which he was investigated by Dr Robert Eaves with gastroscopy. Apparently this did show some gastric erosions and also helicobacter pylori infections. However when he was treated for this with Zantac, Amoxyl and Flagyl there was not much improvement.
Because of his severe anxiety he was referred to St Vincent's Hospital Psychiatric Outpatients and he was seen there by Dr Barnes who felt he probably had either a obsessive compulsive disorder, delusional disorder or a psychotic depression (I have incluced (sic) a copy of the letter). He was started on Prozac 20mg in the morning. He is also using Diazepam occasionally and on short term.

A report from Dr R Chau, dated 11 October 1993 (Exhibit 3), stated:
Mr Chen came from Shanghai in 1988. He had sex with a prostitute in May this year. Ever since then, he does not feel well physically. He has lost over 10 Kg. in weight, episodic sweating, disturb sleep with dreams, feeling weak and worries that he has A.I.D.S. or other types of V.D.
He has multiple blood tests and attendances to various hospitals, Fairfield and Royal Melbourne Hospitals and attended the sex health clinic on 8/9/1993 to have some urethral swop (sic) to exclude V.D. All the tests are negative.
He is suffering from Major Depressive Episode with features of hypochondriasis.

On 1 September 2001, Dr Chau reported (Exhibit E):
This is to certify that Mr Chen consulted me on 11/10/1993 for a reactive depressive illness because he was very worry (sic) that he might have contracted serious sexually transmitted diseases. He was treated with Tofranil 25mg x 2 tablets at night. He failed to keep his follow-up appointment with me on 25/10/1993.
He presented again on 20/8/2001, 27/8/2001 and 1/9/2001. He related to me that since he last saw me in 1993, he was granted permanent residency status on 25/8/1994. But his claim for disability support pension (DSP) in 1999 was rejected on the ground that his disability commenced prior to 25 August 1994.
From psychiatry point of view, his reactive depression in 1993 was not of a long-term nature.
On 29 November 1993 the applicant's general practitioner, Dr R Conway, referred the applicant to Psychiatry Outpatients at St Vincent's General Hospital, (Exhibit C) stating that the applicant had a "phobic and introspective approach to his symptoms and is unchanged by explanations and normal results". Dr Barnes, psychiatric registrar at St Vincent's, reported to Dr Conway on 20 December 1993 (Exhibit C):
This man from China appears to have neurasthenia or a culturally modified form of depression with anxiety and obsessional features. Differential diagnoses include OCD, delusional disorder, and psychotic depression….
A report from Dr Lo at the Brunswick Medical Centre dated 10 July 1997 stated:
This 46 year old unemployed gentleman has returned from a 3 year visit back to China. He is concerned about his ongoing symptoms of recurrent fevers and general malaise and again has requested STD screening. He appears to be somewhat obsessed by the thought that he contracted an STD from an encounter with a sex-worker a few years ago. He is also suspicious of pathology tests and carries his own swab around.
Physical examination today reveals an anxious looking man, normotensive, normal respiratory and cardiovascular systems. There are no lymphodemopathy and abdominal and urine examination was normal.
I feel his problem is mostly functional. He is however not willing to accept this and would like you to follow it up with further testing.
Two reports by Health Services Australia medical practitioners were also in evidence. Dr P Loewy's report dated 8 January 1999 gave the diagnoses of haematuria and IgA glomerulonephritis. Dr Loewy stated the applicant had told him this condition had commenced in 1993. Dr Loewy assigned a rating of 20 points under Table 20 of the Tables for Assessment of Work Related Impairment (Schedule 1B to the Social Security Act 1991 (the Act)) and reported that "on the evidence available, claimant's chronic symptoms appear likely to preclude mainstream gainful employment on the open market in the foreseeable future". A second medical assessment report by Health Services Australia was completed on 16 November 1999 when the applicant made his next claim for disability support pension (T39). In this report, Dr R Shute diagnosed "IgA neuropathy" (as before, this was rated at 20 points under Table 20) and "psychiatric illness" which Dr Shute rated at 20 Points under Table 6 which provides for "psychiatric illness or disorder with either serious symptomatology or impairment in functioning that requires treatment by a psychiatrist". Dr Shute said:
He produced a rambling disjointed history and at times he seemed quite agitated presenting a very 'odd' effect.
His primary complaint is of recurrent severe aches and pains affecting most of his body.   He also described lethargy and poor concentration.   He believes this is due to a kidney problem (IgA nephropathy) which was diagnosed in 1994.   (Previous specialist reports have confirmed this).   He feels that this may be due to a sexual encounter in 1993 but it is of course impossible to determine the specific aetiology of his problem.   He seemed quite obsessed with his health problems and expressed anger at his situation and his belief that no-one seems prepared to do anything for him. He has not received any treatment for this condition for over 1 year.
He clearly has a psychiatric illness of some type and has been under the care of Monash Medical Centre Psychiatrists in the past.   He denied taking any medication at present and there has been a question over his compliance with therapy in the past.
This man is disabled by chronic pain and is completely focused on his physical problems, he also has an underlying psychiatric illness.   It is impossible to determine exactly when these problems started although on the supplied evidence it would appear that they predate the granting of permanent residency (1994) although probably appeared after his arrival in Australia. Whatever the case he is permanently unfit for work.
The applicant's passport showed that he was issued with a student visa on his first entry to Australia in 1998. He was subsequently issued with a subclass 437 PRC (Temporary) visa issued on 20 November 1990, a subclass 783 PRC (Temporary) visa on 14 May 1991 and a subclass 437 PRC (Temporary) on 10 September 1993. On 25 August 1997 he was issued with a subclass 154 Resident visa. Copies of the applicant's passport (T26 p68) showed that the applicant departed Australia on 24 September 1994 and returned from China on 16 May 1997.
CONSIDERATION OF THE ISSUES
The question to be decided is whether the applicant is qualified for payment of disability support pension in accordance with s94(1)(e) of the Social Security Act 1991 (the Act). Section 94 provides for qualification for disability support pension in the following terms:
94.(1) A person is qualified for disability support pension if:
(a)       the person has a physical, intellectual or psychiatric impairment; and
(b)       the person's impairment is of 20 points or more under the Impairment Tables; and
(c)       one of the following applies:
(i)        the person has a continuing inability to work;
… and
(e)     the person either:
(i)        is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)       has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; ………….
The meaning of "continuing inability to work " is set out in s94(2) of the Act, and requires essentially that a person be unable to work for thirty hours per week or more (s94(5)) by reason of impairment or be unable to undertake retraining, for at least two years.
The respondent conceded that the applicant meets the requirements of ss94(1)(a), (b) and (c) at the time of his claim but claimed that the applicant does not meet the requirements of 94(1)(e)(i) because he was not an "Australian resident" when he first had "a continuing inability to work".
"Australian resident" is defined in s7(2) of the Act in the following terms:
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.
The applicant conceded that he did not have 10 years residence in Australia (s94(1)(e)(ii)); and that the ten-year period would not expire until 2004. However, he submitted he satisfies s94(1)(e)(i) because he first had a "continuing inability to work" when he was already an Australian resident. In his submission his "continuing inability to work" only arose after he had Australian residence in August 1994 when he became the holder of a permanent visa, as the diagnoses of his conditions were made in 1998. He submitted that it was at that time only that doctors confirmed he had conditions that would cause long-term disability. In making this submission he stated that "Centrelink did not have even one single direct medical evidence that I had CITW before 1994" (Exhibit A). He relied on a medical certificate from Dr Conway, dated 22 October 1993 (T23 p59), where the doctor had indicated that the applicant would be able to return to full or part time work in three months. He also relied on the report by Dr Bay dated 25 October 2000 (referred to in para 10 above).

He submitted that as he received sickness allowance (a payment for temporary incapacity) in 1993 for a period of 5-6 months, and there was no evidence that he could not work at that time, he did not have an "inability to work" in 1993. He said that he did not see doctors as much in 1994 as in 1993. He said that though he suffered anxiety in 1993, it did not have the necessary features of permanence.
Mr Perdon submitted that the applicant's continuing inability to work arose in 1993, before the applicant had Australian residence as defined in the Act. Mr Perdon submitted that Dr Conway's report did not support the applicant's submission that he did not have a continuing inability to work prior to 1994. He submitted that the report referred to either full-time or part-time work and that ability to do part-time work is not inconsistent with a "continuing inability to work" for purposes of disability support pension. Mr Perdon submitted that as Dr Chau saw the applicant on only one occasion, and was not the treating psychiatrist, he may not have been aware of the frequency of attendances at medical practices when he offered the views in the report dated 1 September 2001.
Mr Perdon submitted that the diagnosis of Dr Barnes in 1993 was to be preferred. Furthermore, the applicant had on earlier occasions told Centrelink that illness prevented him from working since 1993. The applicant's evidence given now to the contrary was not to be relied upon. Mr Perdon submitted that the material before the Tribunal showed that the applicant had at least sixty attendances at medical practices from late 1993 to early 1994. He submitted that on the basis of diagnoses made in 1999, as set out in the medical assessments for disability support pension, the applicant had a psychiatric condition. On the evidence from Dr Barnes in 1993, it should be inferred that the psychiatric condition was present from 1993 and prevented the applicant from working from then.
For the applicant to meet the requirements of s94 (1)(e)(i) of the Act he must be able to establish that he had a continuing inability to work that arose after he gained permanent residence in August 1994 and hence met the definition of "Australian resident".
In considering this question the Tribunal has taken into account the medical evidence, the evidence of the applicant, and the submissions. The clinical notes from the several medical practices where the applicant sought treatment in 1993 and 1994 (Exhibits B-D and Exhibits 2-3) showed numerous attendances by the applicant. From the notes and reports it is clear that doctors were seeking to identify the underlying conditions troubling the applicant in 1993 and 1994. In the months from September to December 1993, the applicant had more than thirty consultations in different medical practices and outpatients sections of hospitals.
Furthermore, on a claim dated 4 October 1993 the applicant said, in answer to Question 6, that he had weight loss (T20 p45) and "a terrible illness." Whilst the applicant now presses the view that he merely had flu-like symptoms and minor anxiety in 1993, this is not what he has said on earlier occasions when describing the impact of his illness on him.
The Tribunal is satisfied, on the basis, in particular, of the reports of Dr Barnes dated 23 December 1993 and Dr Conway dated 22 October 1993, that the applicant had significant psychiatric problems in 1993. Dr Conway diagnosed "acute anxiety commencing August" and referred the applicant to Dr Barnes, psychiatrist at St Vincent's Hospital. Dr Conway reported that the applicant was "quite unable to focus on anything but ill health". Dr Conway's report stated that prognosis was "uncertain". Dr Chau consultant psychiatrist saw the applicant on only one occasion in 1993, and diagnosed "major depressive episode with features of hypochondriasis." The applicant then failed to attend further appointments .
The Tribunal is satisfied that the applicant had a significant psychiatric disorder in 1993, and continued to suffer from this when he claimed disability support pension in 1998. Dr Bay's and Dr Chau's reports to the contrary, in 2001, appear to have been made in ignorance of the full history of the medical intervention that has been involved in the applicant's case. The Tribunal does not accept the applicant's evidence that the condition in 1993 was a mild anxiety. The Tribunal is satisfied, on the balance of probabilities, that in 1993 the applicant had a significant psychiatric disorder that prevented him from working. Had he been assessed for social security purposes at the time, his level of disability would have meant that he had a continuing inability to work in 1993. That is, prior to being an "Australian resident" within the meaning of the Act. The Tribunal finds that the applicant was disabled at the time of his claim in 1999, by a psychiatric condition attracting a rating of 20 points under Table 6 in Schedule 1B of the Act and by the other condition of IgA Neuropathy. On the preponderance of the evidence he was equally disabled by the psychiatric condition in 1993 as he was at the time of the claim for disability support pension.
The provisions of s94(1)(e) of the Act are in the alternative. An applicant must establish that they were an Australian resident at the time that they first had a continuing inability to work (s94(1)(e)(i)), or they must have ten years of residence or be exempted (94(1)(e)(ii)). (Subsection 94(1)(e)(iii) was not raised in this case). At the hearing no submissions were made about the possible application of s94(1)(e)(ii) to the applicant. Section 94(1)(e)(ii) requires that a person have 10 years qualifying residence or "a qualifying residence exemption for disability support pension". This is then defined in s7(6) as follows:
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.

The meaning of "refugee" is given in s7(6B) in the following terms:
7.(6B) A person is a refugee for the purposes of this section if the person:

(a)is taken, under the Migration Reform (Transitional Provisions) Regulations, to be the holder of a transitional (permanent) visa because the person was, immediately before 1 September 1994, the holder of:

(i)a visa or entry permit that fell within Division 1.3-Group 1.3 (Permanent resident (refugee and humanitarian) (offshore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(ii)a visa or entry permit that fell within Division 1.5-Group 1.5 (Permanent resident (refugee and humanitarian) (on-shore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or

(b)was, immediately before 1 February 1993, the holder of a visa or entry permit of a class prescribed under the Migration Regulations as then in force that corresponds to a visa or entry permit referred to in subparagraph (a)(i) or (ii); or
(c)is the holder of:

(i)a permanent protection visa; or
(ii)a permanent visa of a class referred to in the Table at the end of this subsection; or
(iii)a permanent visa of a class referred to in the declaration of the Minister under subsection 25(1) that is in force.

The publication The Independent Social Security Handbook (4th Edition 2001) (the Handbook) sets out at p570 that :
A person is a "refugee" if they hold:

A permanent protection visa; or
A permanent visa of a class declared by the Minister for Family and Community Services…;or
A permanent visa of a class referred to within the Social Security Act (see Table 37.2)
A person is also a "refugee" if the person held a specified class of visa prior to 1 September 1994 (numbers 437, 784 or 820) or a specified class prior to 1 February 1993 (numbers 781 or 783). (Emphasis added)

As set out at paragraph 17 above, the applicant relevantly held visas in classes 783 PRC (temporary) issued on 14 May 1991, and 437 PRC (temporary) issued on 10 September 1993. He was granted permanent residence on 25 August 1993.
After the hearing the Tribunal invited further submissions on the definition of "refugee" in the Act because of this reference in the Handbook to visas that had been held by the applicant at times referred to in s7(6B), namely visa number 783 and visa number 437 .
The respondent lodged an additional submission on 15 November 2001, the relevant parts of which are:
(c)       A person had a qualifying residence exemption for pension if they were a refugee or former refugee [7(6)(b)];
(d)       The term refugee was defined in s7(6B). S7(6B) specifies a number of visa classes or visa numbers. The applicant held visas 437 and 783. Neither visas number 437 no 783 specifically appear in s7(6B). The unifying factor in the visa classes which appeared in s7(6B) is that they were all permanent visas. Visas 437 and 783 were not permanent visas:
(e)       The holder of visas 437 and/or 783 were exempt residents [s7(6C)]. While this gave them a qualifying residence exemption for special benefit [s7(6A)] it did not give them a qualifying residence exemption for pension [s7(6)];
(f)        Neither does the respondent's policy (Guide to the Social Security Law, Visa Handbook) indicate that the holders of visas 437 and/or 783 should be considered refugees as defined;
(g)       The Independent Social Security Handbook is a publication of the Welfare Rights Centre. It is submitted that it is not correct on this topic.
The applicant forwarded additional material but made no additional submissions.
The Tribunal is satisfied that the respondent is correct in submitting that the visas held by the applicant do not fall within the identified categories in s7(6B). The applicant was not the holder of a visa permit that fell within ss7(6B)(a). His visa "immediately" before 1 September 1994 was the subclass 154 resident, which fell within Division 1.4 Group 1.4 in the Migration Regulations (1993), not within Division 1.3 of Part 1.3 or Division 1.5 of Part 1.5. As to the provisions of s7(6B)(b), the Tribunal accepts that the respondent is correct in stating that the provisions dealing with qualifying exemptions for pension look to categories of visas that are permanent rather than temporary. The visa held by the applicant prior to 1 February 1993 (that is, visa class 783) was a temporary visa and could not be said to "correspond" to the visas identified in s7(6B)(a), as the common feature identifiable in s7(6B)(a) is that the visa be one in a category identified in the Migration Regulations as permanent not temporary. This is confirmed in Chapter 5 of Centrelink's Visa Handbook.
The visa subclasses 437 and 783 provided "qualifying residence exemptions" for special benefit, but do not fall within the definition of "refugee", for a residence exemption for a disability support pension.
For these reasons the Tribunal finds that the applicant was not an Australian resident at the time when he first had a "continuing inability to work" within the meaning of the Act and therefore is not qualified for disability support pension.
DECISION
The Tribunal affirms the decision under review.
I certify that the forty (40) preceding paragraphs are a true copy of the reasons for the decision herein of
M.J.Carstairs
Member
Signed:         Rhona Hammond
  Personal Assistant
Date/s of Hearing  4 September 2001
Date of Decision  20 December 2001
Counsel for the Applicant        Self-represented
Solicitor for the Respondent    Mr D. Perdon, Departmental Advocate

[2001] AATA 1033

20 December 2001

Key Legal Topics

Areas of Law

Social Security Law

Immigration & Refugee Law

Legal Concepts

Residency

Disability Support Pension

Continuing Inability to Work

Immigration Status

Permanent Residency