De Mulder and Secretary, Department of Social Services (Social services second review)

[2018] AATA 2925

De Mulder and Secretary, Department of Social Services (Social services second review) [2018] AATA 2925 (17 August 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3636

Re:Daniele De Mulder

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:17 August 2018

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – age pension – qualification for payment – whether 10 years qualifying Australian residence – permanent resident visa obtained through Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) s 351

Social Security (Administration) Act 1999 (Cth) s 42

Social Security Act 1991 (Cth) ss 7, 23, 43

REASONS FOR DECISION

Senior Member A Poljak

17 August 2018

1. Ms De Mulder, the applicant, seeks review of a decision of the Administrative Appeals Tribunal Social Services and Child Support Division (SSCSD) made on 29 May 2017. The decision of the SSCSD affirmed the decision of the Department of Human Services (“the Department”) to reject the applicant’s claim for age pension made on 16 November 2016, on the basis that the applicant did not meet the residency requirements.

2. The issue to be determined in these proceedings is whether the applicant qualifies for the age pension.

   Background

3. The applicant is a citizen of France and arrived in Australia on 26 August 2003. On 25 November 2003, the applicant was granted a subclass 457 temporary work visa. Following the expiry of this visa, the applicant held a series of temporary visas, consisting of one further subclass 457 visa and 13 bridging visas.

4. On 23 March 2010, the applicant applied for an Employer Nomination Scheme (subclass 856) visa which was subsequently refused. This decision was appealed to the former Migration Review Tribunal (MRT). On 17 June 2013, the MRT affirmed the decision and recommended that the matter be referred to the Minister for Immigration for Ministerial intervention.

5. On 25 March 2014, the applicant reached pension age as defined in section 23(5D) of the Social Security Act 1991 (Cth) (“the Act”).

6. On 8 August 2015, the applicant was granted a Former Resident (subclass 151) visa by way of Ministerial intervention.

7. On 16 November 2016, the applicant made a claim for age pension.

8. On 6 December 2016, the applicant’s claim for age pension was rejected on the basis that she did not meet the residency requirements. The applicant sought review of the decision and it was affirmed on 28 February 2017 by an authorised review officer of the Department. The applicant sought review to the SSCSD, the decision of which, dated 29 May 2017, is the decision under review in these proceedings.

   Relevant Legislative Provisions

9. The qualification for age pension is set out in s 43 of the Act and 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).

   (1A)  A woman is qualified for an age pension if:

   (a)  the woman has reached pension age; and

   (b)  the woman’s partner has died; and

   (c)  both the woman and her partner were Australian residents when her partner died; and

   (d)  the woman was an Australian resident for a continuous period of at least 104 weeks immediately before the day she lodged the claim for the age pension.

10. Subsection 7(5) of the Act defines qualifying Australian residence as follows:

    (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.

11. Subsection 7(2) defines Australian resident as 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.

    Note:       For holder and permanent visa see subsection (1).

12. Subsection 7(1) of the Act provides that the terms ‘permanent visa’ and ‘holder’ have the same meaning as in the Migration Act 1958 (Cth) (“the Migration Act”).

13. Section 42 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides that for the purposes of the social security law, a person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2. Clause 3 of Schedule 2 to the Administration Act provides that the general rule is that the start date in relation to the payment of a pension is the day on which the claim is made, provided that the person was qualified for the pension on the date of claim. Otherwise, clause 4(1) of Schedule 2 provides that if a person is not qualified for the pension at the date of claim, a person’s qualification for the pension is to be considered within the period of 13 weeks after the day on which the claim is made. If the person becomes qualified within that period, a claim is taken to have been made on the first day on which the person is qualified for the social security payment.

    Consideration

14. The only relevant qualification applicable to the applicant in these proceedings is whether, at the date of claim, or in the following 13 weeks, the applicant met the 10 years qualifying residence criteria contained in subsection 43(1)(a) of the Act. For the following reasons I am not satisfied that the applicant satisfied this criterion at the date of claim or in the following 13 weeks.

15. The applicant was not the holder of a permanent visa until 8 August 2015, being the date she was granted a Former Resident (subclass 151) visa. Prior to this date the applicant held only temporary Australian visas.

16. The applicant made a claim for the age pension on 16 November 2016, as such at the date of claim, the applicant had only been an Australian resident, as defined in subsection 7(2) of the Act, for approximately 15 months.

17. The applicant contends that due to the visa class of her permanent residence (Former Resident (subclass 151) visa) the Department has recognised her to be a permanent resident in Australia for a minimum of 9 years prior to that visa being granted. This is correct if the applicant obtained the permanent visa through the usual means, as one of the requirements for the visa is that the applicant spent most of their formative years in Australia as a permanent resident (9 years in Australia before the age of 18 years). However in this instance, the applicant was granted a permanent visa as a result of a request for ministerial intervention under section 351 of the Migration Act. This is a public interest power.

18. Subsection 351(1) - (3) of the Migration Act provide:

    (1)  If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

    (2)  In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

    (3)  The power under subsection (1) may only be exercised by the Minister personally….

19. The Minister’s decision is contained in a letter to the applicant dated 20 August 2015 (“the Minister’s decision”). In the Minister’s decision, there was plainly no finding that the applicant had satisfied any of the primary requirements for the visa. It states that the Assistant Minister for Immigration and Border Protection, appointed under section 64 of the Constitution, personally considered the applicant’s case and decided to exercise her public interest power to substitute the decision of the Tribunal with a more favourable decision. No further reasons for the decision are given. The Minister is not required to give reasons, as the power under section 351 of the Migration Act is a personal, non-compellable and non-reviewable power.

20. For the purposes of determining the applicant’s eligibility for the age pension, it is plain on the evidence that the applicant has not been the holder of an Australian permanent visa for a continuous or aggregated period of not less than 10 years at the time of her claim or the following 13 week period. Accordingly, she does not meet the residency requirements contained in s 43(1)(a) of the Act.

    Decision

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 17 August 2018

Date(s) of hearing:	25 January 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services