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

The applicant, a French citizen, sought to qualify for the age pension in Australia. She arrived in Australia on 26 August 2003 and held a series of temporary visas, including a subclass 457 visa and several bridging visas. After her application for an Employer Nomination Scheme visa was refused and affirmed on appeal, the matter was referred to the Minister for Immigration. The applicant reached pension age on 25 March 2014. Subsequently, on 8 August 2015, she was granted a Former Resident (subclass 151) visa through Ministerial intervention. Her claim for the age pension, lodged on 16 November 2016, was rejected on the grounds that she did not meet the residency requirements, a decision affirmed on review. The Administrative Appeals Tribunal was asked to determine if the applicant qualified for the age pension.

The central legal issue before the Tribunal was whether the applicant met the requirement of "10 years qualifying Australian residence" as defined in section 43(1)(a) of the *Social Security Act 1991* (Cth), either at the date of her claim or within the 13-week period following her claim. This required an assessment of whether her period of residency in Australia, particularly in relation to her visa status, satisfied the legislative criteria for qualifying Australian residence.

The Tribunal reasoned that for the purposes of the *Social Security Act*, a person's qualification for a pension is assessed at the date of claim, or within 13 weeks thereafter if qualification is achieved in that period. The applicant was not granted a permanent visa until 8 August 2015. Therefore, at the time of her age pension claim on 16 November 2016, she had only been an Australian resident for approximately 15 months. While the applicant contended that her Former Resident visa indicated a longer period of recognised residency, the Tribunal noted that this visa was granted via Ministerial intervention under section 351 of the *Migration Act 1958* (Cth). This intervention power allows the Minister to substitute a more favourable decision in the public interest, and it does not alter the actual period of permanent residency for social security qualification purposes. The Tribunal concluded that the applicant had not held an Australian permanent visa for a continuous or aggregated period of at least 10 years at the relevant times.

The decision under review was affirmed.