Cherepenko and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 1163
•15 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1163
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1856
GENERAL ADMINISTRATIVE DIVISION ) Re VIRA CHEREPENKO
Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date of Decision 15 December 2008
Date of Written Reasons 23 December 2008
PlaceSydney
Decision
For the reasons given orally at the hearing of this matter, the decision under review is affirmed.
....................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – special benefit refused – claim that applicant should be exempted from waiting period as refugee – holder of aged dependent relative visa – mother of a former refugee – assurance of support in place – applicant not a family member for exercise of discretion – decision under review affirmed.
Social Security Act 1991 ss 7, 23, 729, 739A, 1061ZZGA, 1061ZZGEA, 1061ZZGG, 1061ZZGH, 1227
Guide to Social Security Law
REASONS FOR DECISION
15 December 2008 Ms Robin Hunt, Senior Member introduction
1. Vira Cherepenko came to Australia as the holder of a visitor’s visa. The Minister for Immigration and Citizenship later granted Mrs Cherepenko a subclass 114, aged dependent relative, permanent residency visa. Before Mrs Cherepenko was granted her permanent visa, she was required to furnish an Assurance of Support (‘AoS’). A person known to Mrs Cherepenko’s daughter gave an AoS for Mrs Cherepenko, the AoS was accepted, and Mrs Cherepenko became resident in Australia.
2. Mrs Cherepenko at age 81 is frail and unwell. She has considerable medical expenses. Her daughter, Mrs Natalie Spence, thinks her mother should receive payment of special benefit as a member of a refugee family. Mrs Spence told the tribunal that she and her son arrived in Australia as refugees. She thinks her mother should have received the same treatment and that this would have meant she qualified for special benefit.
issues
3. The primary issue is whether Mrs Cherepenko is entitled to receive payment of special benefit. This involves consideration of whether Mrs Cherepenko is entitled to exemption from the qualifying residence period. This exemption depends on several matters, including, whether she is a ‘family member’ according to the definition of that term in the Social Security Act 1991 (‘the Act’). There is discretion available to treat some recent migrants as family members granted exemption from the waiting period, but Mrs Cherepenko’s situation is affected by an AoS. Guidelines for the application of social security laws also apply so as to clarify when the discretion should be exercised.
reviewable decision
4. Mrs Cherepenko was refused special benefit on 15 June 2007. An authorised review officer reconsidered and affirmed this decision, and the Social Security Appeals Tribunal (‘the SSAT’) again reviewed and affirmed the decision not to pay Mrs Cherepenko special benefit on 7 April 2008.
consideration and findings
5. The background to the application is set out in the Secretary’s statement of facts and contentions and is not disputed. Mrs Cherepenko was born in 1927 and is aged 81. She arrived in Australia on a visitor’s visa. She was granted a further visitor’s visa and a bridging visa before being granted a subclass 114 permanent residency visa, on 29 May 2007, as an aged dependent relative of her daughter, Mrs Spence. Mrs Spence represented her mother at the tribunal hearing.
6. Before the grant of Mrs Cherepenko’s subclass 114 permanent residency visa, a Mr Burlutsky agreed to furnish an AoS. Centrelink wrote to Mr Burlutsky, on 24 April 2007, advising him that his assurance had been accepted. Mr Burlutsky consequently is Mrs Cherepenko’s assurer, and has an obligation to assist her or to repay Centrelink if Mrs Cherepenko receives social security benefits. The period over which Mr Burlutsky agreed to support Mrs Cherepenko starts on 29 May 2007 and ends on 28 May 2009.
7. Obligations of an assurer are set out in the Act. The Act also contains provisions about acceptance of an AoS and the effect of acceptance. Section 1061ZZGA of the Act states:
“assurance of support” means an undertaking by a person … that the person will pay the Commonwealth an amount equal to the amount of social security payments that are:
(a) received in respect of a period by another person who:
(i) is identified in the undertaking; and
(ii) becomes the holder under the Migration Act 1958 of a visa granted in connection with the undertaking (whether or not the person continues to hold the visa throughout the period); and
(b) specified in a determination in force under section 1061ZZGH when the payments are received.
8. Section 1061ZZGEA provides that a person who has given an AoS that has been accepted cannot withdraw that assurance once the person in respect of whom the assurance was given becomes the holder under the Migration Act 1958 of a visa granted in connection with the assurance. Section 1061ZZGG refers to the liability for social security payments and states that the assurer is liable to pay the Commonwealth the amount of the social security payment if:
(a) a person (the assurer) has given an assurance of support that has been accepted under this Chapter; and
(b) a social security payment is received, by another person who is identified in the assurance, in respect of all or part of the period for which the assurance is in force in respect of the other person; and
(c) the social security payment is specified for the purposes of this section ….
9. Mrs Cherepenko sought payment of special benefit on 7 June 2007 and Centrelink wrote to Mr Burlutsky a few days later, on 19 June 2007 before activating his assurance. After some correspondence, Mr Burlutsky advised he was supporting Mrs Cherepenko and thought she would not pursue her claim for special benefit because she would not want him to incur a debt. Mrs Spence confirmed that her mother did not want Mr Burlutsky to incur a debt and the payment was refused.
10. Subsection 1227(1) of the Act further provides that the assurer will incur a debt to the Commonwealth where he or she is liable to pay an AoS debt.
11. Mrs Cherepenko, through her daughter, sought payment of special benefit but, not wishing to bring about a debt for her assurer, argued that no debt should arise. Instead, Mrs Spence argued that her mother should be exempted from any waiting period and was entitled to the payment as a family member of a refugee.
12. Pursuant to subsection 729(1) of the Act, a person may qualify 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. A note to this provision observes that special benefit is a discretionary benefit. Subsection 729(2) goes on to provide that the Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if a number of requirements are met. One of the requirements is set out in paragraph (h) of the subsection and reads:
(h) an assurance of support does not apply to the person at any time during the period ….
13. Mrs Cherepenko is covered by an AoS and therefore does not meet the requirements for the grant of special benefit payment pursuant to subsections 729(1) and (2). Nevertheless, the Secretary’s delegate enquired of Mr Burlutsky if he was able to support Mrs Cherepenko and Centrelink may have been prepared to grant the payment if he was unable or unprepared to support her. Mr Burlutsky did not refuse assistance but it was Mrs Spence who objected to this course of action.
14. When Mrs Spence refused to proceed on the basis that Mr Burlutsky would incur a debt if her mother received the payment, Centrelink declined to make the payment. In my opinion, this aspect of the reviewable decision was correct as an assurance does apply to Mrs Cherepenko until May 2009.
15. Mrs Spence further argued that her mother should not have to serve a waiting period and would not have needed the AoS if she had been treated appropriately, that is, as a refugee. The Secretary acknowledged in his statement of facts and contentions that special benefit might be paid to Mrs Cherepenko pursuant to section 739A of the Act if she met one of the exemptions in that section.
16. Under subsection 739A(1), a newly arrived resident must observe a waiting period. Under subsection 739A(5), the waiting period :
…starts on the day on which the person:
(c) first entered Australia; or
(d) becomes the holder of a permanent visa;
whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
17. The waiting period for Mrs Cherepenko ends in May 2009, that is, two years or 104 weeks after she obtained her permanent residency visa. The term ‘waiting period’ is further defined in section 23 of the Act by reference to other sections concerning various types of social security payments. For special benefit, subsection 739A(6) applies and reads:
(6) Neither subsection (1) nor (2) applies to a person if the person holds, or was the former holder of, a visa in a class of visas determined by the Minister, by legislative instrument, for the purposes of this subsection.
18. The Minister has determined some classes of visa may be exempted from this provision but Mrs Cherepenko’s category of visa is not one of these. It follows that she is not exempted from the waiting period under this provision.
19. A further provision in subsection 739A(7) exempts a person who has suffered a substantial change in circumstances, as follows:
(7) Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.
20. Special benefit might be paid if Mrs Cherepenko had suffered a substantial change in circumstances beyond her control. Mrs Spence did not claim that this had occurred in her mother’s case. Mr Burlutsky indicated he is prepared to assist and has assisted Mrs Cherepenko. Mrs Spence gave evidence to the tribunal that Mr Burlutsky had helped her mother but that he now had problems of his own and she did not want to impose on him further. She also did not wish to call him as a witness. Mrs Spence thought it unfair that Mr Burlutsky should be called upon to honour his assurance. Mr Burlutsky’s willingness to assist her means Mrs Cherepenko’s circumstances have not changed so as to permit a special payment and she is not assisted by subsection 739A(7).
21. Dealing with Mrs Spence’s argument that her mother is exempted as a refugee or family member of a former refugee, I have turned to section 7 of the Act which contains Australian residence definitions. Subsection 7(6), in particular, is one of the provisions that affects Mrs Cherepenko’s situation. Subsections 7(6), (6AA) and (6D) follow:
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.
7(6AA) A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card if, and only if, the person:
(b) was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(f) holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.
7(6D) For the purposes of subsection (6AA):
"family member" , in relation to a person, means:
(a) a partner of the person; or
(b) a dependent child of the person; or
(c) another person who, in the opinion of the Secretary, should be treated for the purposes of this definition as a person described in paragraph (a) or (b).
22. I note that the exemption in subsections 7(6) and 7(6AA) specifically do not apply to claims for special benefit. The exemption under subsection 7(6D) may apply to certain applicants for special benefit in respect to a ‘family member’. Mrs Cherepenko, however, does not satisfy paragraph (a) of the definition as she is not the partner of her daughter or her grandson, nor is she the dependent child of her daughter or her grandson, according to paragraph (b).
23. The remaining paragraph of the definition, paragraph (c), is discretionary and I have considered whether Mrs Cherepenko might be eligible under this provision. Mrs Spence claims that her mother is a refugee, or family member of a refugee or former refugee, being herself and her son, and should not have to serve the waiting period for this reason.
24. Firstly, I find that Mrs Cherepenko is not a refugee in her own right for the purposes of any social security payment, having been granted her permanent residency visa as an aged dependent relative. Apart from Mrs Spence’s claims, there is no evidence before me that Mrs Cherepenko should be treated as a refugee, and I note, she came to Australia about 11 years after Mrs Spence arrived in this country.
25. I accept that Mrs Spence came to Australia as a refugee but this does not mean that Mrs Cherepenko should be treated as a family member of a refugee or former refugee in accordance with the discretion available under subsection 7(6D) paragraph (c) of the Act. The Secretary takes a restricted view of who should be treated as a family member for the exemption under this provision. It was put to me by the Secretary’s representative that the discretion should be exercised only where the applicant is a person who is similar to a dependent child or partner in the context of these persons, being the exceptions provided.
26. The Guide to Social Security Law provides only one example of when the discretion under subsection 7(6D) paragraph (c) might be applied. This example is a “spouse of an Australian citizen who holds a temporary (spouse – provisional) visa”. In my opinion, this example does suggest limited availability of discretion to treat someone as a family member, despite the otherwise general nature of that term which might extend to a range of family relationships if not defined under the Act and clarified under the guidelines. I see no cogent reason to disregard policy in this regard. In my opinion, Mrs Cherepenko is not a person who meets criteria for exercise of the discretion.
27. As I am not satisfied that Mrs Cherepenko should be treated as a family member of a refugee or former refugee, it follows that she is not relieved of the waiting period under this provision. Mrs Cherepenko is not entitled to payment of special benefit under any of the exceptions for a person who is covered by the waiting period, and the AoS remains in force pursuant to section 1061ZZGEA until it expires on 28 May 2009. Accordingly, Mrs Cherepenko is not entitled to payment of special benefit.
decision
28. For the reasons given orally at the hearing of this matter, the decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: ..........................[Sgd]...........................
Jennifer Wong, AssociateDate/s of Hearing 15 December 2008
Date of Decision 15 December 2008
Representative for the Applicant Mrs N SpenceRepresentative for the Respondent Ms S Mantaring, Centrelink Legal Services and Procurement Branch
0
0
0