Ewais; Department of Family and Community Services - [2000] AATA 487

DECISION AND REASONS FOR DECISION [2000] AATA 487

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1979

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    HADIA EWAIS
  Respondent

DECISION

Tribunal MR R P HANDLEY, Senior Member

Date19 June 2000
PlaceSydney

Decision The Tribunal sets aside the decision under review and substitutes a new decision that as at the date of the decision (30 August 1999), Mrs Ewais was subject to a newly arrived resident's waiting period.

…..…………….…………..
Mr R P Handley
Senior Member
CATCHWORDS
Social Security – Special Benefit – newly arrived resident's waiting period – substantial change in circumstances beyond the person's control.
Social Security Act 1991 ss729, 732, 739A

Secretary, Department of Social Security v Secara and others (1998) 51 ALD 481
Re Chelechkov and Department of Social Security (1998) 26 AAR 321
Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426

REASONS FOR DECISION

This is an application by the Secretary of the Department of Family and Community Services ("the Department") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 17 November 1999 to set aside a decision of a delegate of the Department and an authorised review officer and substitute a new decision that the newly arrived resident's waiting period does not apply to Hadia Ewais because she has suffered a substantial change in circumstances beyond her control within the meaning of subsection 739A(7) of the Social Security Act 1991 ("the Act").
At the hearing, the Department was represented by Bernard Slattery of Centrelink and Mrs Ewais was represented by Sandra Koller of the Welfare Rights Centre. The evidence before the Tribunal comprised the documents produced pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with exhibits tendered by the parties. Mrs Ewais and her husband, Al-Mamoon Idris, gave evidence.
background
Mrs Ewais and Mr Idris migrated to Australia from Kuwait arriving in Australia with their twin children, then aged four, on 24 June 1999. They had anticipated having approximately $24,000 on arrival, comprising $18,000 in cash together with clothing purchased in Kuwait valued at $6,000 which was to be air-freighted from Kuwait and sold on to friends of Mr Idris' sister who was already living in Australia. The clothing, which was not insured, was lost in transit.
On 8 July 1999, Mrs Ewais lodged a claim for special benefit. This was rejected by the Department on 9 July 1999 on the ground that Mrs Ewais was not considered to be in hardship. Mrs Ewais lodged a further abridged claim for special benefit on 20 July 1999 and a full claim on 22 July 1999. On 30 August 1999, the Department again rejected Mrs Ewais' claim for special benefit. This decision was affirmed by an authorised review officer on 23 September 1999 on the ground that Mrs Ewais was subject to a newly arrived resident's waiting period of two years from the date of her arrival in Australia. The review officer decided that Mrs Ewais had not suffered a substantial change in circumstances beyond her control which would have allowed the waiting period to be disregarded.
On 17 November 1999, the SSAT decided that Mrs Ewais had suffered a substantial change in circumstances beyond her control. The SSAT therefore set aside the earlier decisions. On 23 December 1999, the Department lodged an application for a review by the Tribunal and a stay of the SSAT decision. On 21 January 2000, the Tribunal ordered that the decision of the SSAT be stayed in respect of the period 20 July 1999 to 16 November 1999, so that special benefit was payable to Mrs Ewais for the period from 17 November 1999.
applicable legislation
To qualify for special benefit a person must, among other matters, be:
"…unable to earn a sufficient livelihood for the person and the person's dependents (if any) because of age, physical or mental disability or domestic circumstances or for any other reason;" (Social Security Act 1991 s729(2)(e))
The Department accepts that Mrs Ewais satisfied this requirement at the date of her claim for special benefit on 20 July 1999. However, s732 (da) states that special benefit is not payable to a person if the person is subject to a newly arrived resident's waiting period which has not expired. In Mrs Ewais' case, s739A provides for a waiting period of 104 weeks to apply, commencing on the day she first entered Australia. Section 739A(7) provides that such a waiting period does not, however, apply:
"…If the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control."
The issue in dispute before the Tribunal is whether or not Mrs Ewais comes within that exception.
the circumstances
There is no real dispute as to the facts. Mrs Ewais, who is aged 35 and is of Jordanian nationality, was living with her husband, Mr Idris, who is aged 33 and is of Palestinian origin, in Kuwait. Neither of them were citizens of Kuwait and, as a result, were not able to own a house or business and were paid less than Kuwaiti citizens. Mrs Ewais has a Bachelor of Arts degree and worked as a teacher in a private school in Kuwait. Mr Idris, who has a Bachelor of Arts in English Language specialising in translation, worked as a journalist. Mrs Ewais and Mr Idris have twin children, a boy and a girl, now aged five. When Mrs Ewais and Mr Idris lived in Kuwait, while they were at work, the children were cared for by family members.
Mrs Ewais and Mr Idris decided to migrate to Australia to secure a better future for themselves and their children. Mr Idris' sister had already migrated to Australia with her husband some years earlier and told Mrs Ewais and Mr Idris that life was much better in Australia. Mr Idris approached a migration agent in Kuwait, Madame Amahl of Halifax Academy Consulting Training Inc, through whom a migration application was submitted to the Australian Embassy in Athens. He paid fees to the migration agent, fees to the Embassy and incurred other expenses in obtaining medical reports. The agent guided Mr Idris through the various steps and dealt with all correspondence from the Embassy. She told Mr Idris it would probably take some time for him to find work in Australia, and that he would not receive social security benefits for two years after arrival.
Mr Idris recalled signing the acknowledgment regarding social security payments at the agent's office (R2), but stated that Mrs Ewais had not accompanied him and had not signed the form. Mrs Ewais said the signature "Hadia" on the form was not hers. She had never seen the form which Mr Idris said that he had not taken home. Mr Idris said he had not seen Form 1105; the information sheet "Supporting yourself in Australia" (R6) which is referred to in the Acknowledgment (R2). Mr Idris also said that although he was aware that he would not receive social security benefits for two years, he had thought his wife and children would be eligible. This was why on arrival in Australia he did not apply for social security benefits but his wife did.
When the migration agent received the letter addressed to Mr Idris from the Embassy in Athens dated 19 March 1999 (R1), he went in to see the agent who showed him the letter. Mr Idris remembered seeing the first page of the letter which deals with the grant of visas and the requirement that he and his family enter Australia by 1 July 1999. He did not remember seeing the second page of the letter which deals with eligibility for social security payments, and the agent did not explain this part of the letter nor give him the letter to take away. Mr Idris said his immediate concern was the rush to make the necessary arrangements to get his family to Australia by 1 July 1999.
Mr Idris said he did not inquire about jobs in Australia. He knew that it had taken his sister, who is a doctor, and her husband, who is an engineer, about four years to get their qualifications recognised and to get jobs. He thought that with his degree and ten years experience as a journalist, it would probably take four to six months to get a job as a journalist. Mr Idris' discussions with his sister had mainly concerned the children's education. His sister said the schools were much better in Australia than in Kuwait. Mrs Ewais did not inquire about jobs for herself in Australia because she thought she would need to look after their two children.
Mr Idris said his sister had a lot of women friends in Australia from Kuwait. She asked him to purchase traditional women's Islamic clothing in Kuwait – much of it in silk, with embroidery on the front, but including veils – which was difficult to obtain in Australia (R5). She suggested he purchase the average sizes. The garments are "intended to be loose fitting and perfect fit is not required" (R5). Mr Idris was not paid in advance for these purchases but his sister said her friends were honest people and would pay him for the clothes once they arrived in Australia. Because such clothes are light in weight, the airfreight would be relatively inexpensive.
Mr Idris did as his sister asked and purchased clothing at a cost of approximately $5500. This was packed in two boxes. Mr Idris sold his family's heavy furniture, fridge and washing machine, with a view to sending to Australia only their personal things together with lighter electronic goods and electronic appliances, kitchenware and other household items. He contacted Alghanim Freight, probably the largest and most respected freight company in Kuwait, to arrange the carriage to Australia. Some of Mr Idris' relatives work for this company which, although often more expensive than other carriers, has a reputation for reliable service. A representative of Alghanim called at Mrs Ewais' and Mr Idris' house and recommended that, given the relatively small number of items to be sent to Australia, they should be airfreighted. Mrs Ewais and Mr Idris packed the boxes, which were taken to Alghanim's warehouse where they were weighed, placed in bags and given a serial number. Among the boxes were the two containing clothes purchased at the request of Mr Idris' sister.
Mr Idris said he went to Alghanim's warehouse a few days before he and his family were due to leave, to check the boxes. The next day, he was sent an account for $1400 and was told the goods would be flown by Gulf Air from Kuwait to Sydney. During discussions with Alghanim's representative, the representative told him there was no need for insurance. If the goods were lost, the company would compensate them. The amount of compensation which might be paid in such an event was not discussed. Mr Idris said he was not expecting the goods to be lost and nobody else that he knew who had airfreighted goods with Alghanim had ever had any problems.
When Mrs Ewais and her family arrived in Australia on 24 June 1999, they had about $18,000 after payment of all the other costs associated with getting to Australia. They anticipated receiving $5500 to $6000 for the clothes purchased at the request of Mr Idris' sister, which would give them a total of about $24,000, enough they believed to support them for approximately one and a half years.
When they arrived in Australia, Mrs Ewais and Mr Idris were surprised at the high cost of living. They said they had anticipated the cost of living would be similar to that in Kuwait. However, to rent a house they had to pay a substantial bond to the Real Estate Agent and the rent was equivalent to that of a very expensive house in Kuwait. Also, telephone and power charges were much more expensive than in Kuwait. Apart from expenditure in securing a house, they spent about $6000 in purchasing furnishings for the house.
The goods airfreighted from Kuwait arrived in Sydney a few days after Mrs Ewais' and her family's arrival. However, there were a number of pieces missing of those originally dispatched – two suitcases and three or four boxes, including the two boxes of Islamic women's clothing. On discovering this, Mr Idris immediately contacted Gulf Air's agent in Australia, Australian Air Express. He was informed that he could lodge a claim for compensation if, after a month, the goods had not been located. Mr Idris also contacted Alghanim in Kuwait who told him that all the goods had left Kuwait on a flight bound for Sydney via Bahrain and Singapore.
When Mr Idris lodged a claim for compensation, he was told that relative to the weight of the goods, he could only claim a maximum of $3000 compensation, even though he estimated the value of the goods lost at $5500 or more. He was told that if he wanted the claim to be processed, he would have to limit his claim. Mr Idris therefore lodged a claim for $3500. After many months, he was eventually offered $1905.68 which he reluctantly accepted because he needed the money. This was paid by cheque on 5 April 2000. Mr Idris said he used the money to pay three weeks rent in advance ($235 x 3), to repay $600 borrowed from a friend on the basis that the loan would be repaid when Mr Idris received some compensation for the lost goods, to repay some money borrowed from his sister, and to buy a few things his family needed.
Since his arrival, Mr Idris said he has tried to find a job as a journalist. However, he has discovered that the three of four Arabic newspapers in Sydney are controlled by the Lebanese community, so it is hard for him, being a Palestinian, to get a job. Instead, Mr Idris has started writing articles for an Arabic magazine and newspaper in Kuwait as their Australian correspondent. He showed the Tribunal a number of Arabic newspapers and magazines in which articles, that the interpreter confirmed were written by Mr Idris, had been published. Mr Idris tendered a fax from the Az-Zamen magazine in Kuwait dated 14 May 2000 (R9) which the interpreter translated, stating that Mr Idris was writing for the magazine as an Australian correspondent but had not yet been paid because he had first to complete a probationary period. Mr Idris said that he has to establish his reputation for providing a regular supply of material. However, writing for Az-Zamen was an excellent start and he hoped they would begin to pay him within the next few months. One of his current problems is that he needs money for expenses incurred in collecting material for the articles he writes.
Mr Idris said he had also tried to get unskilled work, for example delivering newspapers or pizzas but he needed a car for such jobs. He applied for a job as a laundry delivery driver but was told he needed local knowledge of the City which he lacked. A contact who is a partner in a convenience store in the City, a Palestinian from Kuwait, has told Mr Idris that he will contact him when a position becomes available.
Mr Idris sought to enrol in an Information Technology course at South Sydney TAFE, which he thought would complement his journalistic skills, but the fee for this course is $210 plus a student association fee of $15 and a sundries charge of $20 (R8). He was told that if he had a letter from Centrelink stating that he was receiving social security benefits, then the fee would be reduced by 50%. Attending TAFE also involves additional travelling expenses. Since Mrs Ewais has been receiving special benefit, she has been attending a TAFE language skills course twice a week which costs $20 per semester.
Mrs Ewais is currently receiving special benefit pending the outcome of this review. She is also receiving family allowance for the two children. She said that receiving special benefit has helped a lot. Mr Idris' sister regularly gives them $100 to $150 per month, but she and her husband have three children, have recently purchased a house and have many commitments. The money loaned by Mr Idris' sister will have to be repaid in due course. His sister also sometimes brings them food.
the department's submissions
Mr Slattery, for the Department, said that the issue in dispute is whether, pursuant to s739A(7) of the Act, Mrs Ewais has suffered a substantial change in circumstances beyond her control. The Department contended that the loss of the Islamic clothing purchased in Kuwait and consequent loss of approximately $4000 ($5500 - $6000 less the reimbursement of $1905.68) was not, in the context of Mrs Ewais and Mr Idris' circumstances as a whole, a substantial charge. The result of the loss was that they had $20,000 rather than $24,000 to support them in Australia. This was a change in circumstances but not a substantial change in circumstances.
Mr Slattery referred the Tribunal to the Federal Court decision in Secretary, Department of Social Security v Secara and others (1998) 51 ALD 481 where, at 492, Mansfield J, (with whom von Doussa and O'Loughlin JJ agreed) discussed what is meant by a "substantial change in circumstances beyond the person's control".
Mr Slattery submitted that, following Secara (supra), ignorance of the law or an erroneous belief as to the availability of social security benefits, could not constitute a substantial change in circumstances. Mr Slattery noted that Mr Idris had signed the Acknowledgment regarding social security payments (R2) even if Mrs Ewais was confused about the availability of social security payments.
Mr Slattery also referred the Tribunal to Mansfield J's discussion of the meaning of "beyond the person's control". Mr Slattery contended that Mr Idris had acted as agent for Mrs Ewais in failing to insure the goods airfreighted from Kuwait with the consequent loss of $4000. Insuring the goods was therefore something which Mr Idris, acting as agent for Mrs Ewais, "could have done something about". Mr Slattery suggested that it was surprising that Mr Idris had not insured the goods and that a prudent person might have made further enquires about the need for insurance.
Mr Slattery noted that the bulk of Mrs Ewais' and Mr Idris' funds were spent within a relatively short time of their arrival in Australia and after learning of the effect of the two year waiting period. He rejected Ms Kollers' contention that Mr Idris' inability to buy a car as a result of the loss of the $4000 with the consequent effect on his ability to obtain employment, was a substantial change in circumstances beyond Mrs Ewais' control. Mr Slattery said not having a car was not necessarily a barrier to obtaining employment but only a difficulty. Many employed people do not have cars. Mr Slattery also said he thought it was likely, even if the $4000 had not been lost, that Mrs Ewais and Mr Idris would still soon have found themselves in a similar financial situation.
mrs ewais' submission
Ms Koller, for Mrs Ewais, also referred the Tribunal to the Federal Court decision in Secara (supra) and Mansfield J's discussion of "substantial change of circumstances". Ms Koller noted that only one change is necessary, which can occur prior to the arrival of a person in Australia.
Ms Koller said Mrs Ewais and Mr Idris had developed a good plan to enable them to survive financially in Australia while Mr Idris looked for a job, and they had saved a significant amount of money to achieve this end. However, the loss of the $4000 meant they were less able to survive financially, Mr Idris lost the capacity to purchase a car at a critical time (July 1999) when having a car would have facilitated his obtaining unskilled work to tide them over financially until such time as he could find more suitable employment. In deciding whether the change in circumstances was substantial, what matters is the difference the lost money made to Mrs Ewais' and Mr Idris' ability to be self-sufficient. Ms Koller noted that in Re Chelechkov and Department of Social Security (1998) 26 AAR 321, an amount of US $1750 was considered substantial.

Mrs Koller contended that the substantial change occurred when it was discovered that the goods were lost. She noted that it took from late June 1999 until 5 April 2000 for Mr Idris to receive some compensation for the loss. Even if the goods had been insured, securing reimbursement for the loss might have taken a considerable time.
With regard to the issue of control, Ms Koller contended that strict agency should not apply in this case. Mr Idris should not be taken to have acted on behalf of his wife in not insuring the goods airfreighted to Australia. In any event, Mr Idris had been given an assurance by the representative of Alghanim Freight that there was compensation available for any loss. It was reasonable for Mr Idris to rely on such an assurance in the light of Alghanim's good reputation as a reliable carrier. As Mansfield J pointed out in Secara (supra), it is a matter of practical, common sense as to what is required in the particular situation.
consideration of the law
The issue for the Tribunal to decide is whether Mrs Ewais has suffered a substantial change in circumstances beyond her control so that, pursuant to s739 A(7), the newly arrived resident's waiting period of 104 weeks should not be applied. There is no real dispute as to the facts. What is disputed is whether those facts satisfy the requirement of a substantial change in circumstances beyond the person's control.
The leading case on the construction of s739A(7) is Secara (supra), a unaminous decision of the Full Federal Court. As noted earlier, the judgment in this case was written by Mansfield J with whom the other two judges agreed. It is clear that s739A(7) comprises two requirements: first, that the person must have suffered a substantial change of circumstances and, second, that the change of circumstances must have been beyond the person's control.
In Secara (supra), at 492, Mansfield J said of s739A(7)
"…It presupposes a newly arrived person in Australia is in sufficiently needy circumstances as to otherwise qualify, in the case of other Australian residents, for some form of benefit under the Act. It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period. Thus, the change in circumstances cannot be the need itself for the benefit under the Act, as the possible existence of that need underlies the legislative policy that, for two years, it should not be met by benefits payable under the Act. In my judgement, the change in circumstances must be some event or events, not necessarily "external" to the person, which creates that need where it did not previously exist or if it did previously exist where it is no longer appropriate to respond to that need by application of the newly arrived resident's waiting period. There are some circumstances where it is easy to discern its appropriate operation, such as unexpected severe illness, serious accident, or loss of employment. It is clear that in such circumstances the legislative policy is to permit the affected person to pursue benefits under the Act before the newly arrived resident's waiting period has expired. Those circumstances will reflect that it is no longer appropriate to oblige the newly arrived person to provide self support for two years. The two elements which the events or matters constituting the changed circumstances must satisfy are first that the events or matters must be "substantial", that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon, and secondly that the event or matter be beyond the person's control."
At 494, Mansfield J discusses a range of events which might constitute a substantial change in circumstances. Ultimately, however, he concludes:

"…In my judgment, the correct proposition is that it will only be by reference to the particular facts and the matters pertaining to a particular applicant that it will be possible to determine whether there has been, in terms of s739A(7), a "change in circumstances" and whether that change is substantial."

Later at 494 in discussing the facts in Secara (supra), Mansfield J goes on to say:

"…I consider the circumstances to which s739A(7) is directed are facts, matters and events going to an intending migrant's capacity to be self sufficient…"

With regard to what is meant by the phrase "beyond the person's control", at…, Mansfield J reiterates the views he expressed in Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426 at 437-438:
"The concept of "control"…is one of fact, but I think it is intended to mean something which the person could have done something about."

In Secara, (supra) Mansfield J goes on to approve the then President of the Tribunal, Matthew J's findings in Secara (supra), which amount to an acceptance "as a matter of practical common sense" that the changes were beyond the Secaras' control.

Turning to Mrs Ewais' case, first, did she suffer a substantial change in circumstances? Ms Koller contended that the loss of $4000 meant that Mrs Ewais and Mr Idris were less able to survive financially. In particular, Mrs Koller said that the loss of that money in July 1999 acted as a barrier to Mr Idris finding employment in so far as he had no capacity to purchase a car which he could have used to make deliveries.
Mr Slattery contended that this was not a substantial change in circumstances, although he acknowledged that not having a car might prove a "difficulty". He also said he thought it was likely that even if Mrs Ewais and Mr Idris had not lost this $4000, they would still soon have found themselves in a similar financial situation.
The Tribunal notes Mr Slattery's submission that, following Secara (supra), ignorance of the law or an enormous belief as to the availability of social security benefits can not constitute a substantial change in circumstances. In the present case, Mrs Ewais and Mr Idris knew that Mr Idris would be subject to a two year waiting period for social security benefits but thought that Mrs Ewais would be entitled to claim social security benefits not only in respect of her children, but also on her own behalf. Clearly, this was incorrect as is reasonably apparent from information which was received by the migration agent in Kuwait on behalf of Mr Idris (for example R2 and R1). However, in the Tribunal's opinion, Mansfield J's statement in Secara (supra) at 494 that "learning that a belief as to the law was wrong is not a change in circumstances within the meaning of s739A(7)", precludes reliance on this as a change in circumstances.
Thus, the change in circumstances which can be argued in this case is the loss of the $4000. This loss must be considered in the broader context of Mrs Ewais' and Mr Idris' financial situation as a whole. The Tribunal notes that of the $18,000 which they had with them on arrival in Australia, they almost immediately spent $4715 to secure rental accommodation (T23 - a $940 bond, $3290 rent in advance in lieu of references, 2 weeks rent of $470, plus a lease fee of $15), approximately $4600 on furniture, a fridge and washing machine (T21, T22, T24), $190 on electric heaters (R3), and $120 being a bond for their electricity account (T25), a total of nearly $10,000 not including other minor items needed to establish a household.
In the Tribunal's view, the balance of Mrs Ewais' and Mr Idris' money, even without the loss of $4000, was unlikely to be sufficient to support them through a two year waiting period. The loss of the $4000 certainly exacerbated their financial difficulties but it did not give rise to a substantial change in circumstances in the sense ascribed to that phrase by Mansfield J in Secara (supra), cited above. In evidence, Mrs Ewais said she and her husband thought their savings would support them for nine to 12 months while her husband was obtaining employment. Mr Idris said he thought their savings would support them for a year and a half. Unfortunately, as they both acknowledged, the cost of living in Australia has proved to be greater than they anticipated.
The Tribunal acknowledges the plight Mrs Ewais and Mr Idris will find themselves in without Mrs Ewais receiving special benefit. However, it is the clear intention of the legislature to restrict the availability of social security benefits to newly arrived migrants. The Tribunal concludes that Mrs Ewais did not suffer a substantial change in circumstances within the meaning of s739A(7).
46. It is not, then, necessary for the Tribunal to consider whether the change in circumstances was beyond Mrs Ewais' control. Nevertheless, the Tribunal is inclined to think that the change was beyond her control, or at least that of her husband who was her agent in making the necessary arrangements for their migration to Australia. It is easy to be wise with the benefit of hindsight, but, in this case, the Tribunal considers that, in the circumstances, Mr Idris acted reasonably in not arranging insurance for the goods airfreighted to Australia. He engaged a reputable airfreight company on the basis that he was prepared to pay more for their reputedly reliable service. His network of family and friends led him to believe that there would be no problems with the carriage of the goods to Australia. Moreover, he was told by a representative of Alghanim Freight that there was no need to arrange insurance: if the goods were lost, Alghanim would compensate him for the loss. Nevertheless, the Tribunal's view of this aspect of the case, does not affect its decision.
The Tribunal decided that s739A(7) is not applicable in Mrs Ewais' case. Consequently, at the date of the decision (30 August 1999) there were no grounds on which not to apply the newly arrived resident's waiting period of 104 weeks in determining Mrs Ewais' claim for special benefit.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of MR R P HANDLEY
Signed:         .....................................................................................
  Associate
Date/s of Hearing  19 May 2000
Date of Decision  19 June 2000
Solicitor for the Applicant         Sandra Koller
Solicitor for the Respondent    Mr Bernard Slattery