Emmet Byrne and Secretary, Department of Employment

[2013] AATA 894

[2013] AATA 894 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3848
Re	Emmet Byrne
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	16 December 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Claim for advance under Fair Entitlements Guarantee Act 2012 (Cth) – Eligibility criteria – Pensions, benefits and allowances – Date of ending of employment – Applicant not an Australian citizen or the holder of a permanent visa or a special category visa on employment end date – Applicant not eligible for advance - Decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 34J

Fair Entitlements Guarantee Act 2012 (Cth) s 10

Migration Act 1958 (Cth) ss 30, 32

REASONS FOR DECISION

Mr R G Kenny, Senior Member

16 December 2013

APPLICATION

1. Emmet Byrne was employed by Forsyth and Romano Pty Ltd (“the company”) until his employment was terminated on 20 September 2012 due to the insolvency of the company. He lodged a claim for assistance under the Fair Entitlements Guarantee Act 2012 (Cth) (“the FEG Act”) and, on 7 March 2013, a decision maker with the respondent determined that he was not eligible for an advance under the FEG Act. That decision was affirmed by another decision maker of the respondent on 9 July 2013. The matter is to be determined in the absence of the parties without a formal hearing.[1]

   [1] See s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).

   LEGISLATION AND ISSUE FOR DETERMINATION

2. The criteria for payment of an advance are set out on s 10 of the FEG Act, which reads:

   10  Conditions of eligibility for advance

   General conditions

   (1)  A person is eligible for an advance if the Secretary is satisfied of all of the following:

   (a)  the person’s employment by a particular employer has ended;

   (b)  after the commencement of this section, an insolvency event happened to the employer;

   (c)  the end of the employment:

   (i)  was due to the insolvency of the employer; or

   (ii)  occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or

   (iii)  occurred on or after the appointment of an insolvency practitioner for the employer;

   (d)  the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;

   (e)  the person has taken steps, so far as reasonable, to prove those debts in the winding up or bankruptcy of the employer;

   (f)  if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those debts;

   (g) when the employment ended, the person was an Australian citizen or, under the Migration Act 1958, the holder of a permanent visa or a special category visa;

   (h)  an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.

3. The term permanent visa and the criteria for a special category visa are set out in s 30 and s 32, respectively, of the Migration Act 1958 (Cth) which read:

   30 Kinds of visas

   (1)  A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.

   …

   32 Special category visas

   (1)  There is a class of temporary visas to be known as special category visas.

   (2)  A criterion for a special category visa is that the Minister is satisfied the applicant is:

   (a)  a non‑citizen:

   (i)  who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and

   (ii)  is neither a behaviour concern non‑citizen nor a health concern non‑citizen; or

   (b)  a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

   (c)  a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

   (3)  A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:

   (a)  the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and

   (c)  before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.

4. The issue for determination is whether Mr Byrne meets the requirements of s 10 of the FEG Act, in particular, paragraph 10(1)(g) thereof.

   MR BYRNE’S CASE

5. In a statement[2] and in his application for review, Mr Byrne contended that the decision to deny his eligibility was unfair. He arrived in Australia in 2005. He was employed and sponsored by the company under a 457 visa and later held a bridging visa. He applied to the Department of Immigration and Citizenship (as it then was) for permanent residence on 17 January 2012 and was advised that a backlog of applications may result in delay in processing the application. That delay occurred and he was not granted permanent residence until 8 January 2013. He conceded that, when his employment with the company ended, he was not an Australian citizen and did not hold a permanent visa or a special category visa. He wrote that, since moving to Australia, he had always wanted to be a permanent resident and that he had been employed for seven years during which time he had met all of his income tax obligations. He contended that he should not be denied the advance because of a delay in the processing of his application for permanent residence.

   [2] T-Documents, pp. 49-50.

   CONSIDERATION

6. The terms of s 10 of the FEG Act are unambiguous. All of the components must be met, including paragraph (g) thereof which requires that an applicant must have been an Australian citizen or the holder of a permanent visa or a special category visa under the Migration Act 1958 when the employment ended. It is not disputed that Mr Byrne’s employment with the company ended on 20 September 2012 or that he was not an Australia citizen or the holder of a permanent visa or a special category visa on that date. Unfortunately, the provision does not admit of the exercise of discretion to take into account the matters raised by Mr Byrne. He does not satisfy the criteria in s 10 of the FEG Act.

   DECISION

7. The Tribunal affirms the decision under review.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member

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

Associate

Dated 16 December 2013

The matter was determined on the papers 12 December 2013