Dadlani and Department of Family and Community Services - [2001] AATA 481

DECISION AND REASONS FOR DECISION [2001] AATA 481

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/136

GENERAL ADMINISTRATIVE DIVISION     )
           Re      Jaikrishin Dadlani
  Applicant
           And    Secretary, Department of Family and Community Services
  Respondent

And Savtri Dadlani
Party Joined

DECISION

Tribunal Miss E.A. Shanahan, Member

Date4 June 2001
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd.) E.A. Shanahan
  Member
CATCHWORDS
SOCIAL SECURITY – Special benefit payment – failure to advise of two year residency in Australia to qualify for special benefit – administrative error – substantial change in circumstances beyond the applicants control – decision affirmed.
Social Security Act 1991 ss. 7, 23, 79, 732, 739A
Social Security (Administration) Act 1999 ss. 41, 42 and Schedule 2 Clauses 3 and 5
Migration Regulations 1994 Division 2.7 Assurance of Support regulations 2.35 to 2.39
Chelechkov and Secretary, Department of Social Security (AAT 12631,18 February 1998)
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Secretary, Department of Social Security and Seshachalam [1999] AATA 73
Secretary, Department of Social Security and Singh and Kaur (AAT 12667, 2 March 1998)
Secretary, Department of Social Security v Calin-Al Secara & Ors [1998] 1510 FCA (26 November 1998)
Zandieh-Nadem v Secretary, Department of Family and Community Services [2000] FCA 1422 (11 October 2000)

REASONS FOR DECISION

4 June 2001 Miss E.A. Shanahan, Member

This is an application for review of a decision of a delegate of the Department of Family and Community Services dated 1 December 2000 which cancelled the applicants special benefit on the grounds that they were not residentially qualified. This decision was affirmed by an authorised review officer on 11 December 2000. The Social Security Appeals Tribunal ("the SSAT") affirmed the decision of the primary decision maker and the authorised review officer on 1 February 2001. The applicant sought urgent review of the SSAT decision and this was heard on 7 March 2001.
The applicants were represented by Ms Eilish Cooke of Counsel and the Department was represented by an advocate of Centrelink, Ms Rhonda Bradley. The Tribunal had before it the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). No further exhibits were tendered at the time of the hearing. Mr Jaikrishin Dadlani gave evidence before the Tribunal on behalf of himself and his wife Savtri Dadlani.
Background To The Application
The applicants who are husband and wife arrived in Australia on 9 October 1998 with permanent visas granted in India on 18 September 1998. Both applicants are Indian citizens. The applicants son Anil Dadlani had provided Assurance of Support on 8 September 1998 and in accordance with the legislation had lodged a deposit of $5,000 with the Commonwealth Bank. The applicants were aware that there was a waiting period of some two years and that their son Anil had undertaken to support them financially for that period of time. On 28 February 1999 the applicants returned to India with the stated purpose of finalising their property matters consequent upon an inheritance. They returned to Australia on 15 February 2000. On 9 October 2000, the department released the bond of $5,000 to their son Anil. On the same date the applicants were granted special benefit. On 15 November 2000 special benefits to the applicants were suspended when Centrelink recognised that the applicants had not served in Australia the newly arrived migrant waiting period of two years. The applicants contended that they had never been advised that the two year waiting period must be served in Australia. This was their major contention at the hearing before the SSAT. In addition they argued that there was a substantial change in their circumstances which attracted an exemption under s. 739A(7) of the Social Security Act 1991. These contentions were unsuccessful in their application for review before the SSAT.
Evidence Before The Tribunal
Mr J. Dadlani gave oral evidence before the Tribunal on behalf of himself and his wife who are joint applicants for review of a decision of 19 January 2001 made by the SSAT. The applicant agreed that he had arrived in Australia on 9 October 1998 to live with his son Anil who had given an Assurance of Support on 8 September 1998. His visa had been issued in India some three weeks prior to his arrival and as he had not had the opportunity to settle financial affairs in India, his undertaking to bring with him $10,000 (given on 18 February 1997) could not be realised. The applicant was a co-beneficiary in a property in India which could not be sold within the time frame imposed by the visa restrictions. He arrived in Australia with $500 in cash. Both the applicants and their son had anticipated that the applicants would qualify for special benefits after two years. The applicant argued that no document had stated that the two year waiting period must be served in Australia. After five months residence in Australia the applicants returned to India in February 1999 in order to finalise their financial affairs and sell the house they had lived in but was owned by Mr Dadlani's mother. The applicants spent twelve months in India trying to achieve sale of the property and to finalise disputes regarding ownership and entitlement between members of the family. Such finalisation and sale of the property did not eventuate and the applicants returned to Australia in February 2000. The applicants stated that on their return they had no money whatsoever.
On 9 October 2000 the applicants were granted special benefit payment and Anil Dadlani's bond was refunded to him. The applicant's received payment of special benefit for a period of approximately six weeks. The applicants denied any knowledge of the fact that the two year waiting period must be served in Australia. They felt they had been misled by the Department of Immigration and their misbelief had not been corrected by the Department of Family and Community Services. The applicant Mr Dadlani stated that he would not have returned to India if he had known this would negate the two year waiting period. While the applicants lived with their son and daughter-in-law in the twelve months they were resident in Australia their relationship had been cordial and loving. Their son had assisted in all respects with financial help, respect and love. The applicant Mr Dadlani gave evidence that his son would provide him with $200 to $300 at a time as needed and that his son had purchased all the food and covered the household expenses. In evidence in chief Mr Dadlani stated that he was first acquainted with the requirement that he stay in Australia for the two year waiting period in November 2000 when his special benefits were rescinded. He gave evidence that following the events of November 2000 when special benefits were stopped his relationship with his son and daughter-in-law deteriorated rapidly. His son felt he had discharged his responsibilities to his father and had no further obligation to continue to support him. The atmosphere within the house became hostile and the son had frequently threatened to ask his parents to leave the house. The son Anil and his wife had some nine months previously had a child and the daughter-in-law was no longer working. Whilst the applicants continued to live with their son and daughter-in-law the situation had become extremely difficult. The applicant described the relationship as one of bad blood with a hostile atmosphere. When asked why he continued to stay, the applicant advised he and his wife were in fact leaving that night on a flight to return to India. He indicated that he wished to return to Australia but did not know when this would be possible. He gave evidence that his son was paying the airfares of the applicants to return to India. It was obvious that Counsel for the applicants was unaware of the imminent return of the applicants to India.
In cross examination the applicant stated he had retired in 1986 after forty years employment in the Public Service in India. He held a masters degree in economics from an Indian university and had also done post graduate training in the United States of America. The applicants only other child a daughter lived in Washington, United States of America. Following the death of his father the applicants and their two children had resided with his mother shifting into the family home in 1986. The applicants mother had died in 1998 leaving this property to the applicant and his sisters. There was a will but this is being disputed by the members of the family. The applicants son had been living in Australia since 1994. The son worked as an engineer and had stated his income to be $735 weekly in 1997. The applicant was not aware of his son's current income. The applicant agreed that the relationship between himself and his wife and his son and daughter-in-law changed immediately the special benefit payments were ceased. Prior to receipt of special benefit the applicants had contributed no moneys to their up-keep and had not contributed to any household bills. After receipt of the special benefit they contributed $75 per week in rent which was at the time 50% of the rent paid by the son. Since the breakdown in the relationship between parents and son the applicants have continued to help around the house, both applicants doing some of the cooking but in contrast to their previous relationship the applicants no longer eat their meals with their son and daughter-in-law.
The applicant agreed he and his wife had travelled between Australia and India on three occasions, first in 1996 when they visited their son for a period of four months. The airfares on each occasion had been paid for primarily by their son who had also purchased their return tickets to India to be used on the evening of the hearing. The applicants were leaving Mrs Dadlani's jewellery with their son in return for his expenditure on their airfares.
The applicant agreed that he had attended a Centrelink office upon arrival in Australia in September 1998. He had made an application for special benefit but withdrew that application when told of the two year waiting period. He had also applied for Commonwealth Seniors Health Card but was notified on 28 October 1998 that he was ineligible because newly arrived migrants must have lived in Australia for two years after becoming permanent residents before they can receive Commonwealth Seniors Health Card. This advice was contained in T7 (pg. 66 of the s. 37 T documents). The applicant was not able to recollect having read this letter from Centrelink.
The Tribunal had before it the entire Centrelink documentation of the applicants contact with Centrelink, the SSAT decision and detailed letters from the applicants which included communications from the Australian High Commission visa office in New Delhi (T1, pgs. 3-19). Before the SSAT and in his application for review by this Tribunal the applicant Mr J. Dadlani argued that he had complied with all the conditions for special benefit payment on the basis that he had never been informed by the Department of Immigration or by Centrelink, as the agent for the Department of Family and Community Services, that the two year waiting period for new migrants must be served in Australia. The applicants also argued there had been a total breakdown in the relationship with their son and daughter-in-law. They were now penniless and likely to be thrown out of their son's home at any time. It was argued that this family breakdown amounted to a substantial change in circumstances beyond their control. This substantial change in circumstances it was contended was sufficient to attract the provisions of sub-s. 739A(7). In this letter dated 6 February 2001 the applicants requested an early hearing and the possibility of having this application for review squeezed in, should there be a cancellation of any other hearing.
The applicants appeal to the SSAT had been unsuccessful on the grounds that there was not a substantial change in circumstances as required by s. 739A(7) of the Act. The Tribunal had commented on the applicants argument that they had never been advised that the newly arrived resident's waiting period must be served in Australia. The SSAT accepted that the applicants were given inaccurate information by various government departments but found on the authority of Secretary, Department of Social Security v Secara (1998) 51 ALD 481 that "…learning that a belief to the law was wrong is not a "change in circumstances" within the meaning of s 739A(7).". The SSAT commented that the applicants might wish to pursue a claim against the Commonwealth for providing misinformation. The evidence before this Tribunal was that there had been communication from Centrelink to the applicants advising that for other benefits namely Seniors Health Card it was required that newly arrived migrants must have lived in Australia for two years after becoming permanent residents before they could receive a Seniors Health Card.
The Relevant Legislation
Special benefit may be granted at the discretion of the Secretary of the Department when qualifying criteria are meet. These are contained in s. 729(1) of the Act.
Section 732(1)(da) provides criteria for payment of special benefit if a person is subject to a newly arrived resident's waiting period.
The waiting period of two years for special benefit was effective from 4 March 1997. Section 739A states that a newly arrived resident's waiting period:
"739A.(1) Subject to this section, a person who, on or after the commencement of this subsection:
(a)       enters Australia; or
(b)       …
is subject to a newly arrived resident's waiting period.
…
739A.(5) If:
(a)       a person is subject to a newly arrived resident's waiting period; and
(b)       neither subsection (3) nor (4) apply to the person;
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.
…
739A.(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."

Application Of The Relevant Legislation To The Facts Before The Tribunal

Following the applicants oral evidence to the Tribunal, Counsel for the applicants advised that she would not be relying on the argument that the applicants had been misled by not being notified that the newly arrived migrant waiting period for special benefit must be served in Australia. The applicants would rely on the submission that the change in their circumstances had been so substantial that the discretion provided in s. 739A(7) of the Act should be exercised in their favour. Counsel for the applicant sought leave to file a written submission. This was received by the Tribunal on 4 April 2001.
While the applicants are no longer relying on the argument that they had been misled by those government departments who had not notified that the newly arrived migrant waiting period for special benefits must be served in Australia, the Tribunal notes that Centrelink in rejecting their claims for Seniors Health Card as notified on 28 October 1998 did point out that a two year waiting period must be served in Australia. On 29 October 1998 the applicants had made an appointment with Centrelink regarding an application for special benefit, but cancelled and withdrew that application. Had the application been processed the applicants would no doubt have received similar written advice from Centrelink regarding the two year waiting period and the need for it to be served in Australia. The Tribunal notes that Mr J. Dadlani was employed in the Indian Public Service for a total of 40 years and would presume he would be familiar with methods of notification of decisions to citizens and also the need to read such documentation carefully.
Counsel for the applicant has argued that there has been a substantial change in circumstances beyond the applicants control. It is noted that in her submission, and also the letters submitted by Mr Dadlani that accompanied his application for review, that both applicants state they have been threatened with banishment from their son's home since the cancellation of the special benefit. However, at the time of the hearing of this application on 7 March 2001 the applicants were still residing at their son's home and their son was meeting all the costs of living and the costs of upkeep of the home. They were not without shelter and food, but the relationship between the applicants and their son had deteriorated to such a degree that the applicants were leaving to return to India on that day. Their son had purchased their flight tickets to return to India. In evidence before the Tribunal the applicant had stated that he still had access to his parents home in India which was currently unoccupied and in addition to that he had an Indian government pension payable only in India. While having been threatened with homelessness and destitution these threats had not been put into action.
The requirement that the change in circumstances of events or matters should be beyond the applicants personal control is not met on the facts before the Tribunal. The applicants were notified in October 1998 of a need to spend two years in residence in Australia before being eligible for a Seniors Health Care card. They had voluntarily withdrawn their application for special benefit lodged also in October 1998 and this should have alerted them to the fact that they were required to spend the years in Australia before being eligible for special benefit. Their need to return to India to finalise property matters is acknowledged. However, they stayed for a total period of twelve months the reason being given that they were unable to finalise disputed property inheritance or sell the house in question. The applicants have relied on the Federal Court decision in Zandieh-Nadem v Secretary, Department of Family and Community Services [2000] FCA 1422 (11 October 2000) as being of a similar merit. In Zandieh the elderly couple were sick, old and incapable of working and had no family or friends in Australia. The applicants in this review are old and incapable of working, but no evidence was given as to physical ill-health. They are certainly estranged from their son, daughter-in-law and grandchild but the evidence was that it is not anticipated that this estrangement will change. They do have a home to live in in India and are in receipt of an Indian government pension. The purported reason for coming to Australia was to be near their son and his family. The applicants evidence was they doubted that the relationship with their son would ever be repaired.
The advocate for Centrelink argued that the applicant had been advised on 28 October 1998 of the requirement to have lived in Australia for two years before being eligible for a Commonwealth Seniors Health Card. They also relied on the decision of the Administrative Appeals Tribunal in Re Secretary, Department of Social Security and Singh and Kaur (AAT 12667, 2 March 1998) where the Tribunal found the family concerned had suffered hardship, but having depleted all their funds there had been no change of circumstances beyond their control.
For the reasons given above, the decision under review is affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of:
Miss E.A. Shanahan, Member
Signed: .....................................................................................
  Personal Assistant
Date/s of Hearing  7/3/01
Date of Decision  4/6/01
Counsel for the Applicant        Ms E. Cooke
Solicitor for the Applicant         Victoria Legal Aid
Counsel for the Respondent    Ms R. Bradley
Solicitor for the Respondent    Advocacy & Admin. Law Section, Centrelink