CYNTHIA MARJORIE BAKELMUN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 218

[2012] AATA  218

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/4570
Re	CYNTHIA MARJORIE BAKELMUN
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	17 April 2012
Place	Melbourne

The Tribunal affirms the decision under review.

.....................................[sgd]...................................

Senior Member

SOCIAL SECURITY – age pension – residency requirements – period of last residency

Acts Interpretation Act 1901 s 15AA

Administrative Appeals Tribunal Act 1975 s 34J

Social Security Act 1991 s 7(2), 7(3), 7(5), 43(1)

Social Security (Administration) Act 1999 s 11(1), 13(1), Schedule 2

Social Security (International Agreements) Act 1999 s 12A, Schedule 1

REASONS FOR DECISION

G. D. Friedman, Senior Member

17 April 2012

1. Cynthia Bakelmun was born in Sri Lanka in 1947 and lived there until September 1965, when she moved to the United Kingdom.  In April 1976 she arrived in Australia and lived there until December 1980.  She was granted Australian citizenship on 27 August 1980.  From December 1980 until August 2010 she lived in Sri Lanka.  She arrived in Australia on 28 August 2010 and on 29 December 2010 she applied for age pension.  On 19 March 2011 she departed Australia and has been living in Sri Lanka since then.  Centrelink refused her application because she was not considered to have been an Australian resident for long enough to meet the residency requirements.  On 16 September 2011 the Social Security Appeals Tribunal affirmed the decision and Ms Bakelmun seeks review by this Tribunal.

2. Under s 34J of the Administrative Appeals Tribunal Act 1975 and with the consent of the parties the Tribunal decided to review the decision by considering the material lodged by the parties and without holding a hearing.

   ISSUE

3. There was no dispute that within 13 weeks of the date of application for age pension on 29 December 2010 Ms Bakelmun had reached pension age.  She did not claim to be a refugee or a protected special category visa holder.  The issue before the Tribunal is whether Ms Bakelmun satisfies the residency requirements for age pension.

   LEGISLATIVE BACKGROUND

4. Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides:

   Division 1—Claim for social security payment or concession card

   Subdivision A—Need for claim

   11 General rule

   (1)  Subject to subsection (2) and Subdivision B, a person who wants to be granted:

   (a)  a social security payment; or

   (b)  a concession card;

   must make a claim for the payment or card in accordance with this Division.

5. Section 13(1) of the Administration Act provides:

   13 Deemed claim—person contacting Department about a claim for a social security payment

   (1)  For the purposes of the social security law, if:

   (a)  the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

   (b)  the person is, on the day on which the Department is contacted, qualified for the social security payment; and

   (c)  the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

   (d)  the person lodges a claim for the social security payment within 14 days after the Department is contacted;

   the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

6. Schedule 2 subclause 4(1) of the Administration Act provides:

   4  Start day—early claim

   (1)  If:

   (a)  a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)  the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)  the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

7. Section 43(1) of the Social Security Act 1991 (the Act) sets out the residency requirements for age pension:

   43  Qualification for age pension

   (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;

   … 

8. Section 7(5) of the Act defines 10 years qualifying Australian residence:

   7  Australian residence definitions

   …

   (5)  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.

9. Section 7(2) of the Act defines Australian resident:

   (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.

   (3)  In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

   (a)  the nature of the accommodation used by the person in Australia; and

   (b)  the nature and extent of the family relationships the person has in Australia; and

   (c)  the nature and extent of the person’s employment, business or financial ties with Australia; and

   (d)  the nature and extent of the person’s assets located in Australia; and

   (e)  the frequency and duration of the person’s travel outside Australia; and

   (f)  any other matter relevant to determining whether the person intends to remain permanently in Australia.

10. Schedule 1 of the Social Security (International Agreements) Act 1999 (the International Agreements Act) contains an agreement between Australia and the United Kingdom (the UK Agreement). Paragraph 2 of Article 4 of the UK Agreement states:

    For the purpose of any claim by a person to receive an age pension under the legislation of Australia, that person shall be treated as an Australian resident for any period prior to that person’s last arrival in Australia for which:

    (a) that person; or

    (b) if that person is a woman who is or has been married, her husband;

    paid contributions, or had earnings or contributions credited under the legislation of the United Kingdom.    

11. The UK Agreement was terminated on 1 March 2002. Section 12A of the International Agreements Act provides the termination provisions of the UK Agreement:

    On and after 1 March 2001, the social security law has effect, in relation to a person who last became an Australian resident on or before 1 March 2000, as if the agreement the text of which is set out in Schedule 1 had not been terminated.        

    DOES MS BAKELMUN SATISFY THE RESIDENCY CRITERIA FOR AGE PENSION? 

12. In documents lodged with the Tribunal Ms Bakelmun stated that she meets the criteria for age pension.  She said that as at 1 March 2000 she had more than 10 years qualifying residence in Australia because she migrated to Australia from the United Kingdom on or before 1 March 2000 and last became a resident of Australia before that date, so that the termination provisions of the Agreement Act apply to her and her residence in the United Kingdom satisfies the requirements of 10 years qualifying Australian residence. She stated further that, consistent with the wording of s 12A of the International Agreements Act: …as at 1 March 2001…I last became an Australian resident prior to 1 March 2000 at which time I had all the legal privileges of Australian residence.

13. Ms Bakelmun submitted that nowhere within s 12A is there any reference to whether she was an Australian resident prior to 1 March 2000 at the date of claim for age pension. She said that, because she satisfied the provisions of s 12A as at 1 March 2001, she also satisfied the provision on 2 March 2001 and on succeeding days. She submitted that this approach is consistent with s 15AA of the Acts Interpretation Act 1901 (the Interpretation Act) which provides that the interpretation that would best achieve the purpose or object of an Act is to be preferred to each other interpretation. She said that, in this case, the social security legislation is remedial and beneficial in nature, so that any ambiguity should be resolved in a way that is most favourable to the people whom the legislation is intended to benefit. She added that this approach is also consistent with the preservation of her prospective and accrued right to age pension under such legislation that might be affected or otherwise impinged upon by legislative change.

14. In respect of the period from August 2010 until March 2011 when she was staying with her daughter in Australia, Ms Bakelmun referred to the provisions of s 7(3) of the Act and said that she was sharing accommodation with her daughter when she applied for age pension but will need to rent a place to live in the future; her family relationships include her daughter, grandson and extended family in Australia; she has no significant assets in Australia or elsewhere and is dependent on her husband for financial support; she travels to Australia and back to Sri Lanka; her intention is to settle in Australia; and her heart (and therefore home) has always been Australia. She stated that these factors should lead to the conclusion that the termination provisions of s 12A apply to her, so that her period of residence in the United Kingdom should be counted towards the residence requirements in accordance with Article 4 of Schedule 1 of the International Agreements Act.

15. The role of the Tribunal is to stand in the shoes of the decision-maker and to make the correct or preferable decision taking into account all the material before it. The effect of s 11(1), s 13(1) and Schedule 4, subclause 4(1) of the Administration Act is that Ms Bakelmun’s qualification for age pension is to be determined in the period 13 weeks after making her claim on 29 December 2010 (the relevant period).

16. The effect of s 12A of the International Agreements Act is that on or after 1 March 2001 only persons who last became a resident of Australia on or before 1 March 2000 can benefit from the provisions of the UK Agreement. Ms Bakelmun was a resident of Australia from April 1976 to December 1980 (a period of less than five years). In respect of the period from 28 August 2010 (when she resumed living in Australia) until 19 March 2011 (when she departed for Sri Lanka) the Tribunal takes into account the factors in s 7(3) of the Act and acknowledges Ms Bakelmun’s evidence that when she lodged her application for age pension her intention was to settle permanently in Australia. She considered Australia her home, and listed her daughter’s residence as her permanent address.

17. In all the circumstances the Tribunal finds that from 28 August 2010 until her departure on 19 March 2011 she was again an Australian resident.  Therefore during the relevant period, which is the period required to be considered by the decision-maker in determining eligibility for age pension, this is her most recent period of residency, and constitutes the period when she last became an Australian resident.  Consequently the Tribunal does not accept her submission that on and after 1 March 2001 she last became an Australian resident on or before 1 March 2000. There is no ambiguity that requires clarification by s 15AA of the Interpretation Act, and the principle of accrued rights for beneficial legislation does not assist her in this instance.

18. For these reasons the Tribunal finds that on and after 1 March 2001 Ms Bakelmun last became an Australian resident after 1 March 2000, so s 12A of the International Agreements Act does not apply to her, and she does not have 10 years qualifying Australian residence for the purposes of s 43(1)(a) of the Act or s 7(5) of the Act. Consequently she does not satisfy the criteria for age pension.

    DECISION

19. The Tribunal affirms the decision under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

.............................[sgd]..............................

Associate

Dated   17 April 2012

Date(s) of hearing	Not applicable: decision on the papers
Applicant	Ms Bakelmun
Advocate for the Respondent	Mr T de Uray, Centrelink