Clarke and Secretary, Department of Family and Community Services

[2004] AATA 722

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 722

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/482

GENERAL  ADMINISTRATIVE DIVISION

Re:         LINDA JANE CLARKE

Applicant

And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             24 June 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - parenting payment ‑ qualification - New Zealand citizen - whether an Australian resident

Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001
Social Security Act 1991 ss 7(2), 500

Social Security (International Agreements) Act 1999 Schedule 3

REASONS FOR DECISION

24 June 2004  G.D. Friedman, Member

1.      This is an application by Linda Jane Clarke (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 30 March 2004.  The SSAT decision affirmed a decision dated 25 February 2004 of an authorised review officer of Centrelink to refuse the applicant’s claim for parenting payment because she was not an Australian resident at the time of her application.

2.      At the hearing of this matter on 24 June 2004 the applicant represented herself and Mr S. Meehan, a Centrelink advocate, represented the Secretary, Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T26).

BACKGROUND

4.      The applicant was born in New Zealand on 21 August 1956 and is a New Zealand citizen.  She arrived in Australia on 12 January 2004.  Prior to this date she had lived in Australia from January 1980 to November 1983 and from January 1989 to August 1995. She had also visited Australia on a number of occasions between 1995 and 2004.

5.      On 15 January 2004 she lodged an application with Centrelink for parenting payment.  On 20 January 2004 Centrelink refused the claim because the applicant was not an Australian resident.  On 25 February 2004 an authorised review officer affirmed the decision.  On 26 February 2004 the applicant sought review of the decision by the SSAT.  On 30 March 2004 the SSAT affirmed the decision.  On 21 April 2004 the applicant lodged an application with the Tribunal for review of the SSAT decision.

6.      The issue before the Tribunal is whether the applicant was an Australian resident at the time of her application for parenting payment.

EVIDENCE

7.      The applicant gave oral evidence that she first came to Australia in 1979 and stayed about eight months before returning to New Zealand.  She said that she has lived here for various periods since 1980, her second child was born in this country in 1981, and she was married here in 1991.  The applicant returned to New Zealand in 1995.  Between 1995 and 2004 she made a number of short visits to Australia.  She confirmed that on 12 January 2004 she and her youngest daughter moved permanently to Australia to join other family members.

8.      The applicant told the Tribunal that before making the permanent move she had contacted Centrelink in July 2003, and had been informed that, because she had lived in Australia for more than two years, she would be eligible for social security benefits in Australia.  She said that she relied on this advice when making her decision to move to Australia permanently.  The applicant explained that, until her arrival in Australia, she had not known about the new legislation that came into effect in February 2001 which prevented her from receiving parenting payment.  She said that she needs to remain in Australia to care for her ill sister, and that her children and grandchildren live in Australia.  She expressed the view that she should not be penalised for acting on incorrect advice from Centrelink.

9.      The applicant stated that she receives family tax benefit but that her financial circumstances are extremely difficult, and she has been unable to obtain employment in Australia.  She told the Tribunal that she has made an application to Centrelink for compensation because of the wrong advice she was given.  

CONSIDERATION OF THE ISSUES

10. Schedule 3 of the Social Security (International Agreements) Act 1999 (the Administration Act) outlines the agreement between Australia and New Zealand regarding the payment of social security benefits to residents of one country, who are citizens of the other. Section 500 of the Social Security Act 1991 (the Social Security Act) sets out the qualification criteria for parenting payment and s 500(1)(b) provides that a person must be an Australian resident.

11.     The term Australian resident is defined in s 7(2) of the Social Security Act:

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.

12.     In reaching a decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

13. The Tribunal finds that at the date of the claim for parenting payment the applicant resided in Australia and satisfies s 7(2)(a) of the Social Security Act.

14. The applicant is a New Zealand citizen, not an Australian citizen, so she does not satisfy s 7(2)(b)(i) of the Social Security Act. She is not the holder of a permanent visa and so she does not satisfy s 7(2)(b)(ii) of the Social Security Act.

15. In relation to the requirements under s 7(2)(b)(iii) of the Social Security Act, for protected SCV visa holders, s 7(2A to 2D) of the Social Security Act (as amended by the Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001) provides that a person must either be living in Australia on 26 February 2001, even if temporarily absent from Australia on that day; or have been living in Australia for at least 12 months in the 2 years immediately before 26 February 2001; or have come to Australia to live within 3 months of 26 February 2001. The Tribunal finds that the applicant does not meet any of these criteria, so she does not satisfy s 7(2)(b)(iii) of the Social Security Act. Therefore, the applicant does not satisfy any of the requirements of s 7(2)(b) of the Social Security Act and is not an Australian resident for the purposes of the Act.

16. For these reasons the applicant cannot satisfy the requirements of s 500 of the Social Security Act and does not qualify for parenting payment.

DECISION

17.     The Tribunal affirms the decision under review. 

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  24 June 2004

Date of decision:  24 June 2004
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr S. Meehan, Centrelink