Filipovski and Secretary, Department of Family and Community Services - [2002] AATA 1148

DECISION AND REASONS FOR DECISION [2002] AATA 1148

ADMINISTRATIVE APPEALS TRIBUNAL )

)No W2001/464
)W2001/465

GENERAL ADMINISTRATIVE DIVISION        )
           Re      GJORGJI & SLAVKA FILIPOVSKI
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mrs J Dwyer, Senior Member

Date7 November 2002
PlacePerth

Decision The Tribunal affirms the decision under review.

(Sgd) Joan Dwyer
Senior Member
SOCIAL SECURITY – special benefit – requirements as to Australian residence – whether a person who is not an Australian resident may claim special benefit – decision affirmed
PRACTICE AND PROCEDURE – identification of decision under review – complexity of statutory provisions – lack of awareness of residency requirements applicable to New Zealand citizens by Centrelink decision makers or SSAT
LAW REFORM necessity for review of complexity of concept of Australian residence for social security purposes – amendment to omit definitions and sub-paragraphs that can have no possible application – request for amendments to make legislation more easily understood - difficulty of implementation of provisions restricting making of claims for benefit to certain persons where identification of those persons is not straightforward
WORDS AND PHRASES – "Australian resident" – "qualifying residence exemption for special benefit" – "special category visa"
Cases

Re Baats and Secretary, Department of Social Security (1986) 10 ALD 274 14

REASONS FOR DECISION

7 November 2002 Mrs J Dwyer, Senior Member

This is an application under s 179 of the Social Security (Administration) Act 1999 ("the Administration Act") for review of a decision by the Social Security Appeals Tribunal ("SSAT") made on 22 November 2001 (T2 pp 7-14) which affirmed a decision of a delegate of the Secretary, of the Department of Family & Community Services ("the Secretary") made on 5 September 2001. The reviewable decision refused Mr and Mrs Filipovski's claims for special benefit payable under the Social Security Act 1999 ("the Act").
At the hearing, Mr and Mrs Filipovski appeared with their adult daughters Ljiljana and Emilija. They were assisted by a Macedonian interpreter Mr Rufov. Mr Ellis appeared for the Secretary. The Tribunal had before it the documents ("the T Documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
PRELIMINARY ISSUE – IDENTIFICATION OF DECISION UNDER REVIEW
The primary decision in this matter made on 5 September 2001 was affirmed by an authorised review officer ("ARO") on 26 September 2001 (T10 pp 59-61). There is sometimes confusion about identifying the decision under review. Section 179 (1) and (2) of the Administration Act provides as follows:
179 Review of decisions by AAT
(1)     If:
(a)     a decision has been reviewed by the SSAT; and
(b)     the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.
(2)     For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a)     where the SSAT affirms a decision- that decision as affirmed; and
(b)     where the SSAT varies a decision- that decision as varied; and
(c)     where the SSAT sets a decision aside and substitutes a new decision- the new decision; and
(d)     where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT- the directions or recommendations of the SSAT.
That leaves a question as to whether the decision affirmed by the SSAT is the primary decision or the ARO decision. It is necessary to look at section 142(1) of the Administration Act. It provides:
142 Application for review by SSAT
(1)     Subject to section 144, if:
(a)     a decision has been reviewed by the Secretary, the CEO or an authorised review officer under section 126 or 135; and
(b)     the decision has been affirmed, varied or set aside;
a person whose interests are affected by the decision of the Secretary, the CEO or the authorised review officer may apply to the SSAT for review of that decision. (emphasis added)
There is still some ambiguity as to whether "that" decision refers to the primary decision or to the decision on internal review. I have concluded that the decision under review is the decision of the SSAT of 22 November 2001 affirming the primary decision made on 5 September 2001 (T8 p56). It would make no practical difference in this matter if it were the decision on internal review, but it would be desirable for the point to be clarified by statutory amendment.
The decision of 5 September 2001 was very brief. It simply stated (T8 p56):
We cannot pay you Special Benefit because you do not meet the Australian residence requirements for this payment

The primary decision did not refer to the relevant section of the Act which sets out the Australian residence requirements for payment of special benefit.
THE BACKGROUND FACTS

There was no dispute about the relevant background facts which are set out in the T documents. So far as material they are that Mr & Mrs Filipovski, who are New Zealand citizens, arrived in Australia on 18 July 2001 and claimed special benefit on 27 August 2001 (T4). They had initially contacted a Centrelink office on 27 July 2001.
In his statement in support of his claim (T5 p51), Mr Filipovski stated:
"I arrived in WA with my wife on 18/07/01 on NZ passports. Both our daughters have a status of Permanent Australian Residents. Our older daughter, Ljiljana Filipovska, moved to WA in January 2000. She is a single mother supporting her daughter who is a student. Nine months after Ljiljana has moved to WA she became ill. Since then her health condition had gradually become weaker. Even though she endures Rheumatoid Arthritis and Depression, she has still been working casually to support her daughter and herself. Recently, she has been unable to cope well both physically and emotionally. That was the reason why my wife and I had to come from NZ to look after her.
I knew that she has been unwell for awhile, but we became aware of her really deteriorated health condition after we came to WA. These circumstances were beyond her and our control so the initial thought that we will be of her emotional help while she would support us financially has failed.
As she can not support us financially. My other daughter is currently unemployed, I am unemployable at my age of 76. Myself, my wife and I are in extreme financial hardship and have no way of supporting ourselves."

THE RESPONDENT'S SUBMISSIONS AT THE HEARING

Mr Ellis submitted that Mr and Mrs Filipovski were not entitled to claim special benefit under s 30 of the Administration Act and thus could not be paid special benefit. He stated that New Zealand residents can enter Australia at anytime without any visa and can stay indefinitely, but s 30 does not allow them to make a claim for special benefit. Mr Ellis provided various definitions from the Administration Act and the Act, but he did not refer to any Migration Act definitions. He told the Tribunal that as New Zealand citizens Mr and Mrs Filipovski did not require any visas to enter Australia. To the Tribunal's surprise he submitted that as Mr and Mrs Filipovski are not Australian residents, the fact that they entered Australia without any visa requirement operates to their disadvantage in regard to the availability to them of special benefit. Mr Ellis submitted that it was not appropriate for the Tribunal to consider whether a newly arrived resident's waiting period applied to Mr and Mrs Filipovski.
RESIDENCE REQUIREMENTS FOR SPECIAL BENEFIT
When this matter was considered by the ARO (T10 pp59-61) and by the SSAT (T2 pp7-4), the major issue discussed in the reasons for decision was whether Mr and Mrs Filipovski could rely on s 739A(7) of the Act to avoid the 104 week newly arrived resident's waiting period imposed by s 739A(1), and (5). Those sub-sections read as follows:
739A Newly arrived resident's waiting period
(1)Subject to this section, a person who, on or after the commencement of this subsection:
(a)enters Australia; or
(b)becomes the holder of a permanent visa; or
(c)*   *   *   *   *
(d)*   *   *   *   *
(e)becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;
is subject to a newly arrived resident's waiting period.
739A(5)If:
(a)a person is subject to a newly arrived resident's waiting period; and
(b)neither subsection (3) nor (4) apply to the person;
the waiting period starts on the day on which the person:
(c)first entered Australia; or
(d)becomes the holder of a permanent visa;
whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
(7)Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.
Note:        For permanent visa see subsection 7(1).
At the commencement of this hearing Mr Ellis, in opening comments, said that it was his contention that s 739A was irrelevant as Mr and Mrs Filipovski could not satisfy the Australian residence requirements to claim payment of special benefit, and thus they had no entitlement to special benefit. He submitted that, in spite of the ARO and SSAT decisions, the relevant issue was not whether there was a waiting period for payment of special benefit, or a substantial change in circumstances such that the waiting period did not apply to Mr and Mrs Filipovski, but rather whether there was any entitlement to claim special benefit at all. That was not the major contention in the respondent's Statement of Facts and Contentions lodged on 19 July 2002.
Mr Ellis relied on s 30 of the Administration Act. It reads:
30 Residence requirements for claimants for special benefit
A claim for special benefit may only be made by a person who:
(a)    is in Australia; and
(b)    satisfies one of the following subparagraphs:
(i)     the person is an Australian resident;
(ii)      the person has a qualifying residence exemption for special benefit;
(iii) the person holds a visa determined by the Minister to be a visa to which this subparagraph applies.

Although Mr Ellis did not refer to it, s 729(2)(f) of the Act is also relevant. It requires that a person be an Australian citizen or the holder of a certain visa before a special benefit may be granted to the person. It provides:

729(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
…
(f) the person:
(i)is an Australian resident; or

. . .
(v) is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph.

There was no evidence as to any class of visas determined by the Minister for the purpose of subparagraph 30(b)(iii) of the Administration Act or paragraph 729(2)(f) of the Act.

Both s 30 of the Administration Act and s 729(2) of the Act contain a requirement that a person be an "Australian resident" or, in the alternative, require recourse to a number of concepts which are defined in those Acts. There is a definition of "Australian resident" in s 7(2) of the Act. It is as follows:
7.(2) An Australian resident is a person who:
(a)    resides in Australia; and
(b)    is one of the following::
(i)      an Australian citizen;
(ii)     the holder of a permanent visa;
(iii)a special category visa holder who is a protected SCV holder.
Thus it is not enough to satisfy the definition of "Australian resident", that a person resides in Australia. The person must also either be an Australian citizen or the holder of a specified visa. Similarly, where a person is not an "Australian resident", the alternative means of qualification to claim (s 30 of the Administration Act) or to be granted (s 729(2) of the Act) special benefit require that the person either has a specified visa or, for s 30 of the Administration Act, have "a qualifying residence exemption for special benefit".
Mr Ellis brought with him a number of definitions he had extracted from the Administration Act and the Act. He stated that, as New Zealand citizens, Mr and Mrs Filipovski had entered Australia without any requirement for a visa, and thus they could not satisfy the definitions of "Australian resident" in the Administration Act or the Act.
DIFFICULTIES WITH THE HEARING
There was great difficulty in even beginning to address that issue because of its complexity. It is complex even in English, but the need to use an interpreter made it even more complex, as the interpreter was required to interpret statutory language which has no natural meaning, but only a meaning as defined in the relevant legislative provisions.
The hearing was rendered more difficult by the sense of grievance which Ms Ljiljana Filipovska repeatedly expressed about the fact that the focus of the respondent's case had changed so substantially since the SSAT hearing. It had also changed in emphasis from the case as set out in the respondent's Statement of Facts and Contentions.
While the Tribunal understands the difficulty and disappointment of the Filipovski family at finding that Mr Ellis gave the matter a different emphasis from that they had expected, there were only two possible courses to adopt at the hearing. First, the matter could have been adjourned to allow Mr and Mrs Filipovski to consider their position in respect of the residence requirements, or secondly it could have proceeded so that the Tribunal could decide whether the "Australian resident" requirements of the Administration Act and the Act did prevent Mr and Mrs Filipovski claiming, or being paid, special benefit. The Tribunal must of course apply the law as set out in the relevant Acts, but the law on the issue of "Australian resident" requirements for special benefit is not easy to discern.
In order to avoid further delay the Tribunal attempted to adopt the second course, namely to consider the relevant legislative provisions to see whether they did in fact preclude Mr and Mrs Filipovski claiming, or being paid, special benefit. Ms Ljiljana Filipovska was unable to refrain from requiring the interpreter to interpret her expressions of anger and injustice over the approach of Mr Ellis. This meant that very little progress could be made at the hearing to establish the issues as to which evidence was required. Eventually the hearing had to be adjourned. In considering the issues raised by the legislation the Tribunal found that there were many issues which had not been addressed at the hearing. Those issues required clarification before a decision could be made in the matter.
The Tribunal therefore arranged for the Perth District Registrar to write to the parties as follows:
Senior Member Dwyer has asked me to write to you about the hearing in this matter. In starting to write the reasons for decision she has noticed some matters which were not adequately covered at the hearing. She requires further information before she can make a decision on the issues raised in this matter.
1.Mr Ellis in his summary of the respondent's case said that Mr and Mrs Filipovski as New Zealand citizens, did not require or have any visa to enter Australia. However at paragraph 1 of the Contentions in the respondent's Statement of Facts and Contentions it states that Mr and Mrs Filipovski "remain in Australia on a special category visa". Has the respondent checked the visa status of Mr and Mrs Filipovski by inspecting their passports? The Tribunal requests that evidence be provided as to the visa status of Mr and Mrs Filipovski attaching photocopies of the relevant pages from the passports of Mr and Mrs Filipovski. It is suggested that the best way to obtain this evidence would be for Mr and Mrs Filipovski, by arrangement made with Mr Ellis, to take their passports either to the AAT or to a Centrelink office for photocopying.
2.Mr Ellis referred to s.30 of the Social Security (Administration) Act 1999 (the Administration Act), but he did not refer to s.729(2)(f) of the Social Security Act 1991 (the Act). It like s 30 of the Administration Act, contains the requirement that to be granted special benefit a person must be an Australian resident or the holder of a "visa that is in a class of visas determined by the Minister for the purposes of this subparagraph." Has any class of visa been determined by the Minister in respect of s 30(b)(iii) of the Administration Act or in respect of s 729(2)(f)(v) of the Act?
3.Does it include any visa held by Mr and Mrs Filipovski?
4.Was there, at the relevant time, any definition anywhere in the Social Security Act or the Administration Act or in any other relevant Act of the term "qualifying residence exemption for special benefit" (as used in s 30(b)(ii) of the Administration Act)? The definitions of "qualifying residence exemption" in s 7(6) and 7(6AA) of the Act specifically exclude special benefit. It is therefore difficult to give meaning to s 30(b)(ii) of the Administration Act.
5.Was there, as at the relevant period, any arrangement between Australia and New Zealand as to any "qualifying residence exemption" for special benefit or was there any other arrangement as to the circumstances in which a New Zealand citizen living in Australia could be granted special benefit in Australia?
In response to that letter the Tribunal received photocopies of extracts of the applicants' passports certified as true copies by the Deputy Registrar of the Tribunal in Perth. They have been taken into evidence and marked as exhibit A1. They do not appear to have any visas or even entry stamps for entry into Australia.
The Tribunal also received a letter from Mr Ellis addressing the Tribunal's questions. It read as follows:
My apologies for my delay in answering the Tribunal's questions in its letter of 29 August 2002. In answer to the questions, the Advocate submits -
I. The copies of the Applicants passports is attached (courtesy of the Tribunal). There is no distinguishing mark in the passport because, I am advised by DIMA, there is no requirement for an 'entry visa' of any type for citizens of New Zealand to be pasted into the actual passport itself The 'visa' as such is the electronic record in the DIMA mainframe which can be extracted upon request. There may be an 'entry' stamp of some kind in some cases, but this is a 'Customs' matter and not a DIMA one, and very much a local entry point matter.
2. Apart from an initial determination in 1997 and gazetted at s109 of 21 March 1997, there have been three other determinations by the Minister for the purposes of s729(2) and they are attached. I am not aware of any others.
3. It is submitted that these determinations do not apply to Mr and Mrs Filipovski.
4. The Advocate is not aware of any other definition of 'qualifying residence exemption' apart from those mentioned.
5. The Advocate is not aware of any alternative arrangements, formal or informal, that would permit the granting of special benefit to the Applicant's, or any other NZ citizens in like circumstances. It is submitted that the clear intention of the introduction of the 'newly arrived residents waiting period ' was that special benefit would not be paid.

A copy of that letter was sent by Mr Ellis to Mr and Mrs Filipovski. The letter has been taken into evidence and marked as exhibit R1.

During the hearing Mr Ellis referred to the definition of "Australian resident" in s 7(2) of the Act. As set out in paragraph 13 above it provides:
7.(2) An Australian resident is a person who:
(a)    resides in Australia; and
(b)    is one of the following:
(i)      an Australian citizen;
(ii)     the holder of a permanent visa;
(iii)     a special category visa holder who is a protected SCV holder.

Mr and Mrs Filipovski are not Australian citizens. Thus to qualify as Australian residents under the definition in s 7(2) of the Act they would need to satisfy sub-paragraph b(ii) or b(iii). Each of the terms "holder" and "permanent visa" and "special category visa holder" used in s 7(2)(b)(ii) and (iii) are defined in s 7(1) of the Act by reference to the Migration Act. The term "protected SCV holder" is defined in s 7(2A) – 7(2D) of the Act which require that the person have entered Australia before 26 February 2001, except for s 7(2C) which requires entry before 27 May 2001. Mr and Mrs Filipovski, it was agreed, did not enter Australia until 18 July 2001.
There was no reference made during the hearing to the Migration Act 1958 (the "Migration Act") definitions of "holder", "permanent visa" or "special category visa holder". This was because Mr Ellis asserted that Mr and Mrs Filipovski did not hold any visa to enter Australia.
Mr and Mrs Filipovski were not asked to give formal evidence as to whether they had any visa to enter Australia. They indicated that they agreed with Mr Ellis that no visa was required. However, after the hearing, the Tribunal noticed that at paragraph 1 of the respondent's contentions, in the Statement of Facts and Contentions lodged on 19 July 2002, it is stated that Mr and Mrs Filipovski remain in Australia on a special category visa. It was because of that conflict between Mr Ellis' assertion and paragraph 1 of the respondent's contentions that the Tribunal arranged for the District Registrar to seek clarification of the visa status of Mr and Mrs Filipovski in his letter to the parties. The material lodged on behalf of the parties does not show that Mr and Mrs Filipovski are the holders of any visa. After receiving Mr Ellis' letter (R1) the Tribunal requested that an extract of any DIMA electronic record be obtained by Mr Ellis. That was received by the Tribunal on 4 November 2002 and marked as exhibit R2. It does not show that Mr and Mrs Filipovski were the holders of any visa when they entered Australia.
Because Mr Ellis made no reference to the concept of a "special category visa", and because he did not bring the Migration Act definitions with him to the hearing, the Tribunal did not understand the reference in paragraph 1 of the respondent's contentions to a "special category visa". It was not aware until after the hearing that s 32 of the Migration Act provides:
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 shown an officer, 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.
Thus the "special category visa" was a special visa for New Zealand citizens. If Mr and Mrs Filipovski had "special category visas" and were each a "protected SCV holder" they would have been Australian residents under s 7(2)(b)iii) of the Act. It is because they did not arrive in Australia until after 26 February 2001, or 27 May 2001, that they can not each be a "protected SCV holder" (see s 7(2A) (2B) and (2C) of the Act) and thus cannot meet the definition of an "Australian resident".
Section 729(2)(f)(v) of the Act does contain an alternative means of qualifying for a grant of special benefit, namely by being the holder of a visa determined by the Minister for the purposes of the subparagraph. There have been determinations by the Minister as set out by Mr Ellis in his letter (R1) but there is no evidence that Mr or Mrs Filipovski hold any of the specified visas.
Section 30 of the Administration Act, on which Mr Ellis relied contains further complications. As set out in paragraph 12 above it reads:
30 Residence requirements for claimants for special benefit
A claim for special benefit may only be made by a person who:
(a)    is in Australia; and
(b)    satisfies one of the following subparagraphs:
(i)     the person is an Australian resident;
(ii)     the person has a qualifying residence exemption for special benefit;
(iii) the person holds a visa determined by the Minister to be a visa to which this subparagraph applies.
There does not seem to be any definition of the term "qualifying residence exemption for special benefit" used in subparagraph 30(b)(ii) of the Administration Act. The only similar definitions are of "qualifying residence exemption" in s 7(6) and s 7(6AA) of the Act. They specifically do not cover special benefit. They read as follows:
7(6)A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit, a mobility allowance, a pensioner education supplement, a seniors health card or a health care card if, and only if, the person:
(a)resides in Australia; and
(b)is either:
(i)a refugee; or
(ii)a former refugee.
7(6AA)A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card if, and only if, the person:
(a)*   *   *   *   *
(b)was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(c)*   *   *   *   *
(d)*   *   *   *   *
(e)*   *   *   *   *
(f)holds or was the former holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph. (emphasis added)
The complexity of the concept of Australian residence for social security purposes seems incomprehensible. It appears that there is no longer such a thing as a "qualifying residence exemption for the special benefit". Mr Ellis in his reply to the Tribunal's letter (R1) could not point to any definition of "qualifying residence exemption for special benefit". If the term has no possible application then sub-paragraph 30(b)(ii) of the Administration Act should be omitted. The Ministerial Determinations as to (Declaration of Visa in a Class of Visas – Qualification for Special Benefit) refer to s 729(2)(f)(v) of the Act. They make no reference to s 30(b)(ii) of the Administration Act.
Further, the concept of s 30 of the Administration Act is unusual. It restricts the making of a claim for special benefit to certain persons but, as Mr Ellis agreed in discussion with the Tribunal, it is basic to the training of counter officers within the department and Centrelink that any person can lodge any claim. That was the tenor of the evidence received in Re Baats and Secretary, Department of Social Security (1986) 10 ALD 274 see p284, paragraph 24. The question is rather one of entitlement to payment on a claim.
It would be difficult to see how s 30 of the Administration Act could be implemented in its present form. Mr and Mrs Filipovski could not be expected to know that they were not entitled to lodge a claim. Similarly it seems too difficult to expect counter officers to know who may and who may not make a claim for special benefit, at the time when a request is made for a special benefit claim form. In fact it is only when a completed claim is considered, that a decision maker would be able to decide whether or not the claimant was a person who may make a claim for special benefit. Consideration should be given to amending s 30 of the Administration Act in a number of respects.
It seems appropriate to point out that the history of this matter indicates that there is little awareness of the residence requirements of s 30 of the Administration Act and s 729(2)(f) the Act, even by Centrelink decision-makers and the SSAT. While the primary decision maker may have relied on s 729(2)(f) of the Act, or on s 30 of the Administration Act, in making the decision of 5 September 2001 (T8 p56), there is no reference to either section in the advice of rejection of the claim dated 5 September 2001.
The computer file record of the ARO decision of 26 September 2001 (T6 pp 53 and 54) gives a totally different reason for the rejection of the claim namely:
The claim has been rejected because the claimants have a second daughter in Australia who, it might be presumed, would have been able to provide emotional support to this daughter, Liljana Circumstances have not changed dramatically between claimants decision to leave New Zealand and emigrate to Australia and therefore claim for special benefit rejected" (abbreviations have been extended).
The written advice of the ARO decision of 26 September 2001 (T10 pp 59-61) referred to ss36 and 37 of the Administration Act and ss 729 and 739A of the Act, but did not discuss s 30 of the Administration Act or s 729 of the Act. The ARO considered the issue whether the newly arrived resident's waiting period applied to Mr and Mrs Filipovski, not whether they were entitled to claim or be granted special benefit. The decision statement of the ARO reads:
"In your case, I considered the provision of sections 36,37 and 41 and Clause 5 of Schedule 1 of the SSAA and sections 729 and 739A of the SSA. I also considered Centrelink policy about Special Benefit as set out in Chapter 3 of the Guide to Social Security Law.
Sections 36 and 37 of the SSAA say that Centrelink can only grant Special Benefit to a person if satisfied that the person is qualified for Special Benefit and Special Benefit is payable to the person. Clause 5 in Schedule 1 provides that if a person is subject to a waiting period, then the day from which the person's payment can be granted is the day after the waiting period ends. Section 41 says that "a social security payment becomes payable to a person on the person's start day in relation to the social security payment."
Section 729 of the SSA sets out the qualification requirements for Special Benefit. Section 739A refers to payability requirements for Special Benefit, and relevantly states: "Subject to this section, a person who, on or after the commencement of this subsection …enters Australia …is subject to a newly arrived resident's waiting period." Subsection 739A(5) states: "If …a person is subject to a newly arrived resident's waiting period;… the waiting period starts on the day on which the person: … first entered Australia; or … becomes the holder of a permanent visa .. which ever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling 104 weeks after that day."
Subsection 739A(7) says that the 104 week waiting period does not apply if [the person] "in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control." Centrelink policy is such a change in circumstances has to have occurred after the person arrived in Australia or at least after they were irrevocably committed to coming to Australia."

The ARO concluded:

"I looked carefully at the information Centrelink has about the circumstances in which you came to Australia.
The information you have provided indicates that at the time you travelled to Australia, you knew your daughter was unwell. You state she has rheumatoid arthritis and depression. Your intention was that you would provide her with emotional support and she would become well enough to support you and your wife in Australia.
I accept that you were concerned for your daughter's health and your family's well-being when you decided to come to Australia. The information I have looked at indicates that . . . you hoped that your daughter would respond to the emotional support you offered by becoming well enough to support you and your wife. However, I do not consider that the information you have given supports the conclusion that this was a well founded expectation or that the fact that your daughter cannot support you and your wife financially constitutes a substantial change in circumstances beyond your control.
In this situation, I consider that subsection 739A(7) does not apply and so your Special Benefit is subject to a 104 week waiting period which ends on 17 July 2003. This means I must agree with the decision made at Centrelink Fremantle not to grant Special Benefit to you.

Similarly the SSAT did not mention either s 729(2)(f) of the Act or s 30 of the Administration Act. It assumed that Mr and Mrs Filipovski were entitled to claim special benefit and considered whether the newly arrived resident's waiting period applied to them. It stated at paragraphs 16 – 19 of the decision, under the heading APPLICATION OF THE LAW (T2 pp 13-14):
Section 739A(1) of the Act states:
739A.(1) Subject to this section, a person who, on or after the commencement of this subsection:
(a)     enters Australia; or
(b)     becomes the holder of a permanent visa; or
(e)     becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;
is subject to a newly arrived resident's waiting period.
Section 739A(5) states:
739A.(5) If:
(a)     a person is subject to a newly arrived resident's waiting period; and
(b)     neither subsection (3) nor (4) apply to the person;
the waiting period starts on the day on which the person:
(c)     first entered Australia; or
(d)     becomes the holder of a permanent visa;
whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
17.    This means that Mr and Mrs Filipovski are subject to a newly arrived residence waiting period for two years from the date of their arrival in Australia.
18.    However, section 739A(7) says that this does not apply if the person has suffered a substantial change in circumstances beyond the person's control in the Secretary's opinion.
739A.(7) Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.
19.    As explained under the heading Discussion of the Evidence, the Tribunal does not accept that Mr and Mrs Filipovski have suffered a substantial change in circumstances beyond their control since arriving in Australia or since irrevocably committing to move to Australia and therefore they are subject to a two year newly arrived residents waiting period before special benefit is payable to them.
Additionally, the Secretary's Statement of Issues lodged with the Tribunal on 23 January 2002 simply stated:
1. Are Mr & Mrs Filipovski, the Applicants, subject to the newly arrived residents waiting period before being eligible for payment of Special Benefits.
2. If so, have the Applicant's circumstances suffered a substantial change that was beyond the Applicant's control.
Finally the respondent's Statement of Facts and Contentions lodged on 19 July 2002 did not address section 30 of the Administration Act. It did however refer to the requirement in sub-paragraph 729(2)(f)(i) of the Act and said in paragraph 4:
"On 26 September 2001 an authorised review officer reviewed the decision to reject the claims for special benefit. The authorised review officer affirmed the decision to reject the claims. The authorised review officer explained that section 729 of the Social Security Act (the Act) required that in order to be eligible for special benefit the applicant must be a permanent Australian resident."

I cannot find any explanation to that effect in the decision of the ARO.

The respondent's Statement of Facts and Contentions then stated under Contentions:
"1. The decision made on 5 September 2001 to reject the applicants claims for special benefit is the correct and preferable decision in this case.
Section 729 requires a person to be a permanent Australian resident and the applicants can not satisfy that requirement. The applicants remain in Australia on a Special Category Visa. Accordingly their applications for special benefit fail at this point."
As explained in paragraphs 25 and 26 of these reasons, there is no evidence that Mr and Mrs Filipovski as New Zealand citizens held or required any visa to enter Australia. The respondent's Facts and Contentions spend over a page discussing the issue of a change in circumstances under s 739A(7) of the Act. It was Mr Ellis' contention that that issue does not arise, as Mr and Mrs Filipovski are not entitled to claim special benefit under s 30 of the Administration Act or to be granted special benefit under s 729(2) of the Act.
It is clear there has been much confusion in the way the delegates of the Secretary, Centrelink officers and the SSAT have handled this matter. The Filipovski family quite understandably felt aggrieved at the emphasis given to the residency issue at the hearing, when they had understood until the hearing that the relevant issue was whether Mr and Mrs Filipovski had suffered a "substantial change in circumstances beyond the person's control", such as to allow a decision to be made under s 739A(5) of the Act, that the newly arrived resident's waiting period does not apply to Mr and Mrs Filipovski.
It is regrettable that Mr and Mrs Filipovski and their daughters do not seem to have been made aware before the hearing that s 729(2)(f) of the Act and s 30 of the Administration Act provided statutory residency requirements beyond mere factual residence in Australia, which must be satisfied before s 739A(7) can have any bearing on their entitlements. In fact the law seems to be so complicated that it is difficult for this Tribunal to understand its application. Mr Ellis did not offer any explanation as to why New Zealand citizens, who are entitled to arrive here without any requirement for visas, should have less entitlement to special benefit than new arrivals from other countries.
CONCLUSION
Mr Ellis submitted that s 30 of the Administration Act means that the decision rejecting Mr and Mrs Filipovski's claim for special benefit, because they do not satisfy the residency requirement to claim special benefit, was correct and must be affirmed. That submission is supported by reference to s 729(2)(f) of the Act, even though Mr Ellis did not address that section. The combined effect of those two provisions and the definitions of the terms they contain in s 7(2A)-7(2D) of the Act seems to be that New Zealand citizens who entered Australia after 26 February or 26 May 2001 cannot be granted special benefit in any circumstances, unless they have become Australian citizens. Thus the newly arrived resident's waiting period of 104 weeks under s 739A of the Act has no application to them. This seems harsh and it is hard to understand why other arrivals should have the possibility of avoiding s 739(A), where they have suffered a substantial change in circumstances as referred to in s 739(A)(3), but New Zealand citizens have no possibility of obtaining special benefit in any circumstances.
Mr Ellis did not refer to any provision giving any discretion in the matter. My own researches have not led me to find any way in which I can do anything other than affirm the decision under review. I do so with reluctance as I recognise that Mr and Mrs Filipovski are in an extremely difficult position and that they have frequently been the recipients of confusing advice and decisions.
I propose to arrange for copies of this decision to be sent to the Secretary of the Department of Family and Community Services and the Chief Executive Officer of Centrelink and to the Ombudsman. It may be appropriate for the issues raised to be investigated in three respects. First, there does not seem to be a consistent view within Centrelink or within the Department as to whether New Zealand citizens can claim and be granted special benefit, or as to whether a newly arrived resident's waiting period applies to people entering Australia from New Zealand with the intention of residing here permanently. Secondly, if New Zealand arrivals in Australia are not able to claim special benefit, even if there has been a substantial change of circumstances beyond their control, a question arises as to what means of support is available to them. I have wondered whether there is some relief somewhere in a provision to which my attention has not been drawn. Thirdly it seems that some legislative amendment is required to ensure that the legislation is more easily understood. The history of this matter shows that the SSAT and the representatives of the Secretary acting in the matter before this Tribunal have difficulty understanding the legislation. I share that difficulty and I wonder what hope there is of counter officers and newly arrived residents arriving at an understanding of the rights of newly arrived persons to a grant of special benefit.

The decision under review will be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs J Dwyer, Senior Member
Signed:         Grace Carney
  Personal Assistant
Date/s of Hearing  15 August 2002
Date of Decision  7 November 2002
Counsel for the Applicant        Nil
Solicitor for the Applicant         Self represented
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr Ellis