ELENA DANIELA SANDU and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 778
•31 October 2012
[2012] AATA 778
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1603
Re
ELENA DANIELA SANDU
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms K Hogan, Member
Date 31 October 2012 Place Perth DECISION SUMMARY
The Tribunal affirms the Decision under review.
Ms K Hogan, Member
Catchwords
Social Security - Carer Allowance- Residency Requirement
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
Acts Interpretation Act 1901
Migration Act 1958
Migration Regulations 1994Cases
Bayahow v the Secretary of Department of Family Community Services, unreported, [2004] AATA 1343
Secondary Materials
The Social Security (Class of Visas - Qualifying Residence Exemption)
Determination 2009REASONS FOR DECISION
Ms K Hogan, Member
31 October 2012
HISTORY
On 20 October, 2011 the applicant, who was the holder of a Subclass 309 (Spouse (Provisional)) visa, lodged with Centrelink a claim for carer payment.
On 10 November, 2011, a Centrelink officer decided to reject the applicant’s claim for carer payment (the original decision).
On 7 December, 2011 the applicant requested a review of the original decision.
On 7 February, 2012, a Centrelink authorised review officer (ARO) decided to affirm the original decision (the ARO decision).
On 13 February, 2012, the applicant lodged an application with the Social Security Appeals Tribunal (SSAT) for review of the ARO decision.
On 19 March, 2012, the SSAT affirmed the decision of the ARO.
On 24 April, 2012, the applicant appealed to this Tribunal.
THE ISSUE
The issue to be considered by the Tribunal is whether the applicant was qualified for carer payment when she held a Subclass 309 (Spouse (Provisional)) visa.
LEGISLATION
The legislation relevant to this decision is contained in the SocialSecurity Act 1991(the Act); the Social Security (Administration) Act 1999, (the Administration Act); the Migration Act 1958 (the Migration Act); and the Migration Regulations 1994 (the Regulations).
EVIDENCE
The Tribunal was provided with a number of documents including:
(a) the section 37 documents;
(b) written submissions from the applicant and the respondent.
The Tribunal heard oral submissions on behalf of the parties.
APPLICANT
Mr. Moraru, representing the applicant, sought review of the decision on the basis that the legislation had not been properly applied.
The applicant contended that the provisions of subsections 7(6AA)(b) and 201AA(2) of the Act were incorrectly applied.
The applicant’s spouse originally arrived in Australia on a Subclass 202 Refugee visa granted on 6 June, 1991, which ended on 3 December, 1994, when he left Australia.
The applicant’s spouse became an Australian citizen in December 1993 and when he returned to Australia on 5 October, 2011, it was as an Australian citizen.
The applicant came to Australia with her spouse on 5 October, 2011, but was not a family member at the time her spouse entered Australia as a refugee in 1991. The applicant contended that as her spouse entered Australia as a refugee and later became an Australian citizen, when he returned to Australia on 5 October, 2011, he was a former refugee for the purposes of section 7(6AA) of the Act.
The applicant also contended that she should have been granted a Subclass 100 visa.
RESPONDENT
The respondent contended that the applicant was not qualified for carer payment under section 198 of the Act in the 13 week period commencing on 19 October, 2011.
The respondent acknowledged that the provisions of section 7(6AA) could be seen as ambiguous. The respondent contended that it is clear that the purpose of the legislation was to grant a qualifying residence exemption to a family member of a refugee or former refugee if they were such a family member at the time the refugee or former refugee first arrived in Australia and not on the basis of being the family member of a returning refugee.
The application lodged in the Tribunal, made a claim that the applicant should have been granted a Subclass 100 visa rather than a Subclass 309 visa. The respondent contended that it was not open to the Tribunal to make a decision as to whether or not the correct visa was issued. Whilst it is a matter that may or may not have been able to be agitated under the provisions of the Migration Act, the respondent contended that the Tribunal has to accept, as a matter of fact, that the visa that was granted at the relevant time was a Subclass 309 visa, and that it did not fit the category of visas which would enable the applicant to receive the carer benefit at the relevant time.
The respondent contended that the relevant issue is whether or not the applicant was a family member of a refugee or a former refugee at the time the refugee or the former refugee arrived in Australia in 1991.
The respondent argued that a similar interpretation was applied by Member Perton in Bayahow v the Secretary of Department of Family Community Services, [2004] AATA 1343. In that case, the status of the person at the time of their first entry or first arrival into Australia was considered.
CONSIDERATION
Based upon the material in the section 37 documents and the submissions of the parties the Tribunal finds that the applicant is a Romanian national and that she was granted a Subclass 309 (Spouse (Provisional)) visa on 5 May, 2011, and entered Australia on 5 October, 2011. The Tribunal further finds that the issue of the whether the applicant should have been issued with a Subclass 100 visa instead of a Subclass 309 visa is not before the Tribunal.
Section 198 of the Act sets out the qualification for carer payment. Subsection 198(4) of the Act requires the recipient of carer payment to be an Australian resident.
Subsection 7(2) of the Act defines an Australian resident as a person who resides in Australia and is an Australian citizen or the holder of a permanent visa or a special category visa holder who is a protected special category visa holder.
Section 32 of the Migration Act sets out that there is a class of temporary visas known as special category visas. To be granted such a special category visa, a person must be a citizen of New Zealand (provided they are a non-citizen of Australia) or be a person, or belong to a class of persons, that have been declared by regulations as a person for whom another class of visa would be inappropriate.
One of the criteria for a Subclass 100 (Spouse (Permanent)) visa is that a person holds a Subclass 309 (Spouse (Provisional)) visa (Schedule 2 to the Regulations at clause 100.221(1)(a)(i)). A Subclass 309 (Spouse (Provisional)) visa is separate and distinct from a permanent visa.
A Subclass 309 visa is a temporary visa granted to partners of Australian citizens, Australian permanent residents or eligible New Zealand citizens.
The applicant was granted a permanent visa (Subclass 100 (Spouse (Permanent)) visa on 15 February, 2012. The applicant re-applied for carer payment which was paid from 16 February, 2012.
The Tribunal is satisfied that when the applicant first contacted Centrelink to apply for a carer payment on 13 October, 2011, she was not an Australian citizen, or a holder of a permanent visa, or a holder of a protected special category visa. By application of subsections 7(2) and 198(4) of the Act, the applicant was not qualified for carer payment during the period from 13 October, 2011 to 15 February, 2012.
DECISION
The Tribunal affirms the Decision under review.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member
...(Sgd) T Freeman......................................
Associate
Dated 31 October 2012
Date of hearing
4 September 2012
Applicant
Ms Sandu
Advocate for the Applicant
Mr Moraru Advocate for the Respondent Mr Dube Solicitors for the Respondent Sparke Helmore
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