COLIN GREEN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 438
•27 June 2013
[2013] AATA 438
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1032
Re
COLIN GREEN
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 27 June 2013 Place Brisbane The Tribunal affirms the decision under review.
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Ms Lee Cross, District Registrar
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Residency – 10 years qualifying Australian residence – Qualifying residence exemption – Not qualified – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Social Security Act 1991 (Cth) ss 7, 43REASONS FOR DECISION
Dr M Denovan, Member
INTRODUCTION
Mr Green is the applicant in this matter. Mr Green’s application for age pension in August 2012 was rejected on the basis that he had not been an Australian resident for 10 years, which is the minimum time required for a person to qualify under the law. Mr Green believes he should qualify for age pension because he has resided in Australia since November 2004.
Both parties have consented to this matter being determined in their absence in accordance with s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
BACKGROUND
Mr Green was born in the United Kingdom in August 1947. He came to Australia on a temporary tourist visa on 31 October 2003 and remained in Australia until 1 June 2004.
On 9 November 2004, Mr Green returned to Australia and remained in Australia on a bridging visa and a temporary partner visa until 11 December 2006, when he was granted a permanent visa.
On 30 June 2009, Mr Green became an Australian citizen.
On 7 August 2012, Mr Green made an application for age pension. That application was rejected by the respondent on 9 August 2012. The decision was affirmed by an authorised review officer on 18 December 2012 and by the Social Security Appeals Tribunal on 18 February 2013.
Mr Green applied to this Tribunal for review on 5 March 2013.
LEGISLATION AND ISSUES
The legislation relevant to this application is contained in the Social Security Act 1991 (Cth) (“the Act”). The Act sets up the requirements a person must satisfy before they are eligible for age pension. Relevant to this application, s 43(1) of the Act provides:
(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age pension;
(c) the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d) if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Note 1: For qualifying Australian residence see section 7.
Note 2: For pension age see subsections 23(5A), (5B) (5C) and (5D).
In accordance with s 7(5) of the Act, a person has 10 years qualifying Australian residence “if and only if”:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
It is not in dispute that Mr Green did not reach pension age before 20 March 1997 and that he has not been in receipt of any of the pensions or allowances referred to in s 43(1)(c) of the Act.
I therefore have to decide whether Mr Green has 10 years qualifying Australian residence or, if not, whether he has a residence exemption for an age person.
TRIBUNAL’S FINDING
Does Mr Green have 10 years qualifying Australian Residence?
In order to be considered an Australian resident, a person must reside in Australia and be either an Australian citizen, or hold a permanent visa, or hold a special category visa and be a protected SCV holder.[1]
[1] Section 7(2) of the Act.
Although Mr Green has resided in Australia since 9 November 2004, he has at no stage held a protected special category visa, was not a holder of a permanent visa until 11 December 2006 and did not become an Australian citizen until 30 June 2009. Consequently, 11 December 2006 is the earliest date from which Mr Green can be regarded as an Australian resident under the Act.
When Mr Green applied for age pension in August 2012, he had been an Australian resident for less than 6 years. As he did not have 10 years qualifying Australian residence, he therefore does not satisfy the requirements of ss 7(5) or 43(1)(a) of the Act.
Does Mr Green have a qualifying residence exemption for age pension?
For a person to have a qualifying residence exemption for age pension, they must reside in Australia and either be a refugee or former refugee.[2] There is no suggestion that Mr Green is or was ever a refugee.[3] Mr Green therefore does not qualify for a residence exemption under s 43(1)(b) of the Act.
[2] See s 7(2) and 7(6) of the Act.
[3] See s 7(6B) of the Act.
DECISION
As Mr Green does not satisfy any of the criteria in s 43(1) of the Act, he did not qualify for age pension at the time of his application. The Tribunal affirms the decision under review.
I certify that the 16 (sixteen) preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
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Associate
Dated 27 June 2013
Heard on the Papers 7 June 2013
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