Do Hong and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 841

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 841

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1657

GENERAL ADMINISTRATIVE DIVISION		)
Re		NHUNG DO HONG

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date22 September 2008

PlaceBrisbane

Decision  The Tribunal affirms the decision under review.

...............[Sgd]...............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – carer payment and carer allowance – whether applicant is an Australian resident – applicant is a Vietnamese citizen – applicant not holder of permanent visa nor protected special category visa – applicant not Australian resident – applicant does not qualify for carer payment or carer allowance – decision under review affirmed.

Migration Act 1958 (Cth) s 30(1)

Social Security Act 1991(Cth) ss 7(1), 7(2) 198 (4) (a), 198 (4) (b), 954

REASONS FOR DECISION

22 September 2008 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Mrs Nhung Do Hong[1] (Mrs Do Hong) has made applications for both Carer Payment and Carer Allowance. Her claims were rejected on the ground that she was not an “Australian resident” under Social Security law. In determining this application I must consider whether Mrs Do Hong is an “Australian resident” under Social Security law. I will also consider whether she is qualified to receive Carer Payment or Carer Allowance.

[1] In these reasons the name of the applicant is spelt as it appears on her application. Exhibit A; T1.

RELEVANT DECISIONS

2.      On 11 April 2007, Mrs Do Hong made an application for Carer Payment. On that date she also made an application for Carer Allowance. On 21 April 2007, Centrelink rejected both of these applications on the ground that Mrs Do Hong was not an Australian resident. On 12 June 2007, the Authorised Review Officer of Centrelink affirmed these decisions. On 21 November 2007, the Social Security Appeals Tribunal also affirmed these decisions. Mrs Do Hong has now sought review of that decision by this Tribunal.

WHETHER THE APPLICANT IS AN AUSTRALIAN RESIDENT

3.      I will now consider whether Mrs Do Hong is an “Australian resident” as that term is defined under social security law.

4.      The Social Security Act 1991 (‘the Act’) defines an ‘Australian resident’ as a person who resides in Australia: s 7(2) (a). In order to satisfy the requirement of being an ‘Australian resident’ , an applicant must also be an Australian citizen, a holder of a permanent visa or a holder of a special category visa who is a protected SCV holder; s 7(2)(b).

5. The presence of the conjunctive “and” (at the end of paragraph (a) in s 7(2) of the Act) makes it clear that in order to be regarded as an “Australian resident” an applicant must satisfy the requirements of both paragraph (a) and paragraph (b) of s 7(2) of the Act.

6.      Mrs Do Hong did not give any evidence in support of her application. Her application was presented on her behalf by Mr Kristoffersen who demonstrated an awareness of social security law.

7.      The uncontradicted documentary evidence before me indicates that Mrs Do Hong is a Vietnamese citizen who arrived in Australia in June 2006. Her passport from the Socialist Republic of Vietnam is in evidence before me and describes her as having Vietnamese nationality[2].

[2] Exhibit C;T19, fol 69.

8.      Mrs Do Hong married her husband, Mr Kristoffersen, in August 2006[3].          Mr Kristoffersen is an Australian citizen.

[3] Exhibit A; T4, fol 9.

9. It is not in contention that Mrs Do Hong resides in Australia. I find that Mrs Do Hong resides in Australia and thereby satisfies the requirements of s 7(2) (a) of the Act.

10. I must now determine whether Mrs Do Hong satisfies the requirements of s 7(2) (b) of the Act.

11. Mrs Do Hong is a Vietnamese citizen. There is certainly no evidence before me that Mrs Do Hong is an Australian citizen. I find that Mrs Do Hong does not satisfy the requirements of s 7(2) (b) (i) of the Act.

12. I will now examine whether Mrs Do Hong satisfies the requirements of s 7(2) (b) (ii) of the Act by being the holder of a permanent visa.

13.     The evidence before me is Mrs Do Hong is the holder of a sub class 309 visa that was granted to her on 14 November 2006. Such a visa allows Mrs Do Hong to live in Australia while her claim for permanent residency as a spouse is under consideration[4]. I have to determine whether this visa is a permanent visa for the purposes of s 7(2) (b) (ii) of the Act.

[4] Exhibit A; T10 fol 29.

14.     The conditions in relation to the sub class 309 visa are in evidence before me: the visa as endorsed on her passport allows Mrs Do Hong to remain in Australia until “the permanent visa application has been decided or until the permanent visa application is withdrawn”[5].  These conditions on their face make it quite clear that a sub class 309 visa is quite distinct from a permanent visa.

[5] Exhibit C; T19, fol 70.

15. The term “permanent visa” is defined in s 7(1) of the Act to have the same meaning as in the Migration Act 1958. Under s 30(1) of the Migration Act a visa “to remain indefinitely” in Australia is “to be known as a permanent visa”. I have taken the view that the visa that has been issued to Mrs Do Hong cannot be regarded as a permanent visa because the terms of the visa do not allow her “to remain indefinitely” in Australia. The sub class 309 visa as endorsed on her passport is described as a “provisional” visa. It follows that in my view Mrs Do Hong does not satisfy the requirements of s 7(2) (b) (ii) of the Act.

16. For the sake of completeness I have examined the material before me to consider whether Mrs Do Hong satisfies the requirements of s 7(2) (b) (iii) of the Act by being a special category visa holder who is a protected Special Class Visa (SCV) holder. There is no evidence before me to indicate that Mrs Do Hong is a protected SCV holder as that expression is defined in s 7(1), (2A), (2b), (2C) or (2D) of the Act. To come within the definition of a “protected SCV holder” Mrs Do Hong had to have resided in Australia on 26 February 2001 (as well as having satisfied the other requirements of in s 7(2A), (2B), (2C) or (2D) of the Act). As the evidence before me is that the “initial entry” of Mrs Do Hong in Australia was 7 June 2006,[6] she cannot satisfy s 7(2) (b) (iii) of the Act which requires an applicant to have resided in Australia on 26 February 2001.

[6] Exhibit C; T19, fol 70.

17. For the above reasons I have concluded that Mrs Do Hong is not an Australian resident as she does not satisfy the requirements stated in s 7(2) of the Act.

WHETHER THE APPLICANT QUALIFIES FOR CARER PAYMENT

18.     I will next consider whether Mrs Do Hong qualifies for Carer Payment under social security law.

19. Section 198(4) of the Act provides that a person must be an Australian resident to qualify for payment of Carer Payment unless the conditions stated in s 198(4) (a) and (b) apply. Those provisions refer to where (a) the person is in a country in which carer payment may be granted to the person under a scheduled international social security agreement; and (b) the scheduled international social security agreement entered into force on or before 24 December 1992. I am satisfied that neither of those paragraphs applies to Mrs Do Hong.

20.     I have therefore concluded that Mrs Do Hong does not qualify for Carer Payment because she is not an Australian resident.

WHETHER THE APPLICANT QUALIFIES FOR CARER ALLOWANCE

21. I will also consider whether Mrs Do Hong qualifies for Carer Allowance under social security law. In material respects s 954 of the Act provides that a person must be an Australian resident to qualify for Carer Allowance. I have concluded that Mrs Do Hong does not qualify for Carer Allowance because she is not an Australian resident.

CONCLUSION

22.     I appreciate that Mrs Do Hong provides needed assistance to her husband. However, it is my considered view that under social security law, she does not qualify for either Carer Payment or Carer Allowance.

DECISION

23.     I affirm the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed:         ................[Sgd]................................................................
  Elizabeth Young, Research Associate

Date/s of Hearing  6 August 2008
Date of Decision  22 September 2008
The Applicant was represented by Mr K Kristoffersen
For the Respondent                  Mr R Hamilton, departmental advocate