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

[2016] AATA 37

Dunn and Secretary, Department of Social Services (Social services second review) [2016] AATA 37 (29 January 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2456
Re	Stephen Dunn
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	29 January 2016
Place	Brisbane

The decision under review is set aside. The Tribunal decides in substitution that Newstart allowance is payable to the applicant.

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Senior Member McCabe

Catchwords

SOCIAL SECURITY – benefits and entitlements – Newstart allowance - newly arrived resident’s waiting period – whether applicant exempt – applicant entered Australia before 1 January 1993 – applicant held permanent entry visa before last departure – exception to newly arrived resident’s waiting period applies – decision under review is set aside and substituted

Legislation

Social Security Act 1991 (Cth) ss 7(2), 7(3), 593(g)(ii), 623A

Migration Act 1958 (Cth) s 4(1)

Cases

Weldemichael and Department of Family and Community Services [2002] AATA 309

REASONS FOR DECISION

Senior Member McCabe

29 January 2016

1. Mr Stephen Dunn, the applicant, is a New Zealand citizen whose claim for the Newstart allowance was rejected on 19 December 2014. The Secretary of the Department of Social Services agreed Mr Dunn qualified for the allowance but denied it was payable to him because he was subject to a newly arrived resident’s waiting period imposed pursuant to s 623A of the Social Security Act 1991 (Cth) (the Act). The outcome of this application turns on whether Mr Dunn is properly subject to that waiting period.

   Background

2. The applicant’s parents decided to migrate to Australia in 1985. Mr William Dunn, the applicant’s father, came to Australia first to find work. Mrs Marilyn Dunn, the applicant’s mother, remained behind in New Zealand to tie up loose ends. The applicant accompanied his father. He arrived in this country on 20 April 1985. He was enrolled in a Sydney school and began to attend classes. But Mr Dunn senior had difficulty finding stable employment: see exhibit three.

3. After a time, the family decided the applicant’s living arrangements in Sydney were unsustainable. Mr Dunn’s parents decided it was in his best interests to return to New Zealand to be with his mother until his father found permanent work and stable accommodation. The records indicate the applicant departed Australia on 7 September 1985 (exhibit one at p 66).

4. During the hearing the applicant said his family intended to remain in Australia as permanent residents after his arrival in 1985. He said the family hoped his father’s difficulties in finding employment (which led to the applicant’s return to New Zealand) was just a temporary setback. The applicant noted he returned to Australia on 9 December 1988, but he said life here had not settled sufficiently for him to remain. He left the country again on 30 January 1989 after a 7-week stay: exhibit one at p 66.

5. Mr William Dunn’s employment and accommodation situation did not improve sufficiently for the applicant to return to Australia in the short term. Mr Dunn senior returned to New Zealand sometime in 1989. The applicant finished high school in New Zealand before starting a university degree and moving to the United States where he met his wife and started a family. In 2002 the applicant and his wife decided to return to Australia. Mrs Dunn entered Australia in 2002 followed by the applicant in February 2003.

6. Since his return to Australia, the applicant has bought property, owned a small martial arts business and raised two children with his wife. On 30 May 2014, Mr Dunn was granted a Resident Return Visa - subclass 155. (He previously held a Special Category Visa – subclass 444 which is the standard visa provided to New Zealand citizens entering Australia.)

7. The applicant became unemployed and applied for the Newstart allowance in December 2014. The claim was rejected, and the matter has now come before this Tribunal.

   Is the Newstart allowance payable to Mr Dunn?

8. The respondent concedes the applicant is qualified to receive the allowance because he satisfies the requirements of s 593 of the Act. Section 593(g)(ii) in particular says a person applying for Newstart must be an Australian resident (or exempted from that requirement by reason of s 7(7)). The expression Australian resident is defined in s 7(2) to be (a) a person who resides in Australia, and (b) an Australian citizen, the holder of a permanent visa or a special category visa holder.

9. The Secretary accepts the applicant has resided in this country since 2003. The Secretary reached that view after having regard to the criteria in s 7(3). The Secretary also accepts the applicant has held a permanent visa since 2014. But while the Secretary accepts the applicant is qualified to receive the allowance, the Secretary says it is not payable to Mr Dunn because he is subject to the newly arrived resident’s waiting period.

10.  The newly arrived resident’s waiting period is imposed pursuant to s 623A of the Act. Section 623A(1) provides:

Subject to this section, a person who:

a)    has entered Australia on or after 1 January 1993; and

b)    has not been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks;

is subject to a newly arrived resident's waiting period.

11.  The Secretary argues that whether a person has entered Australia hinges on the concept of residency – not mere physical entry into Australia. The plain English words “entered Australia” in s 623A(1)(a), it is argued, must be read down. The Secretary says “entered Australia” should be read as applying only to people who entered the country with an intention to make Australia home.

12.  The Secretary acknowledged the Tribunal accepted physical entry was enough to satisfy the requirement of the sub-section in Weldemichael and Department of Family and Community Services [2002] AATA 309. But the Secretary argued that approach to the legislation would result in an absurdity. Such an interpretation would, for example, enable a tourist who had visited Australia prior to 1 January 1993 to return to the country and escape the operation of the newly arrived resident’s waiting period.

13.  I note the applicant’s uncontradicted evidence that he intended to reside in Australia when he came here in 1985. As a New Zealand citizen he was entitled to do that without a visa under the migration laws as they stood at the time. I accept this was not a case where the applicant merely entered the country on two occasions prior to 1993 for the purposes of a holiday.

14.  If the reasoning in Weldemichael is correct, it would suggest Mr Dunn entered Australia prior to 1993 in the relevant sense. Read in isolation, the plain words of s 623A(1) suggest he should not be subject to the newly arrived resident’s waiting period. But there is a question over whether the plain meaning of s 623A(1) is modified by the presence of some of the exemptions in s 623A, most obviously (for present purposes) s 623A(5).

15. Section 623A(5) provides relevantly:

Subsection (1) does not apply to a person if: …

(c)  the person:

i.has previously entered Australia before 1 January 1993; and

ii.held a permanent entry permit granted under the Migration Act 1958 as then in force, or a permanent visa, before the person's last departure from Australia.

16. Sub-section 623A(5) does appear to qualify the operation of sub-section (1) by introducing a requirement that the person hold a permanent entry permit. But that argument was raised and addressed by the Tribunal in Weldemichael. In that case, the Tribunal proceeded on the basis that the person entering the country prior to 1993 did not have to hold a permanent entry permit at the time of that entry. The Tribunal interpreted the provision as imposing an additional requirement that could be satisfied at some point after the initial entry before 1993.  On that approach, the real question was whether the person held such a permit before their last departure whenever that occurred: see [24].

17.  I agree with the reasoning in Weldemichael. There is no basis for reading down the plain English words “entered Australia” in s 623A(1) as the Secretary contends – albeit I acknowledge s 623A(5) does add an extra requirement. I am satisfied Mr Dunn entered Australia twice before 1 January 1993. I accept he did not have a permanent entry permit or a permanent visa on either of those occasions. On both occasions, he entered under a Special Category Visa - sub-class 444. Those visas were issued on each occasion a New Zealand citizen visited Australia, and presumably lapsed upon their departure. The visas did not confer a right to re-enter. Mr Dunn did not obtain a permanent entry permit or a permanent visa until 30 May 2014.

18. The question, then, is whether Mr Dunn left Australia in the period between 30 May 2014 (when he was granted a permanent visa) and 3 December 2014 (when he lodged his claim for Newstart)? If he did, then s 623A is no barrier to payment of Newstart.

19. A Centrelink customer record (exhibit 1 at p 127) shows Mr Dunn departed Australia on 24 August 2014 and returned on 17 November 2014. That means Mr Dunn is not caught by s 623A(1) because Mr Dunn entered Australia before 1 January 1993 and held a permanent entry visa before his last departure from Australia (in the relevant period). It follows the newly arrived resident’s waiting period does not apply to Mr Dunn.

20.  The decision under review must be set aside. In substitution I find the Newstart allowance is payable to the applicant.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 29 January 2016

Date of hearing	2 November 2015
Applicant	In person
Advocate for the Respondent	Mr J Guthrie, Department of Human Services