Fu and Department of Family and Community Services

[2000] AATA 712

DECISION AND REASONS FOR DECISION [2000] AATA 712

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2000/485

GENERAL ADMINISTRATIVE DIVISION          )      
           Re      YING DI FU
  Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Senior Member M D Allen

Date18 August 2000

PlaceSydney

Decision      The decision under review is affirmed.   

(Sgd)               M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS

SOCIAL SECURITY  -  Application for Age Pension.  Applicant not entitled as not resident for required 10 years.  Would have been entitled if he had not obtained employment and thus qualified for Mature Age Allowance.  Lacuna in Act. 

Social Security Act 1991 - ss7, 43, 660YBA

REASONS FOR DECISION

18 August 2000      Senior Member M D Allen

1. By application lodged with the Tribunal on 28 March 2000 the Applicant sought review of a decision by a Social Security Appeals Tribunal that on 21 February 2000 affirmed a prior determination by a delegate of the Respondent refusing his request for an Age Pension.

2. The Applicant was born in China on 3 December 1933 and arrived in Australia on 28 December 1995 on a "Family Reunion Parent" visa.  In March 1996 he obtained employment with Roadmark Group Limited and continued in that employment until 19 June 1998 when he was retrenched due to lack of work (see Document T4).

3. The Applicant then applied for Newstart Allowance which was granted and paid until December 1998, the date when he turned 65.  He was then paid Special Benefit.  On 5 October 1999 the Applicant applied for Age Pension which application was refused.  Currently he is still on Special Benefit.

4. Subsection 43(1) of the Social Security Act 1991 reads:

   "A person is qualified for an age pension if the person has reached pension age and any of the following applies:

   (a)the person has 10 years qualifying Australian residence;

   (b)the person has a qualifying residence exemption for an age pension;

   (c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;

   (d)if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997."

1. The term "qualifying Australian residence" is defined in subsection 7(5) of the Social Security Act 1991 in the following terms:

   "A person has 10 years qualifying Australian residence if and only if:

   (a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

   (b)the person has been an Australian resident during more than one period and:

   (i)  at least one of those periods is 5 years or more; and
               (ii) the aggregate of those periods exceeds 10 years."

Whereas subsection 7(6) reads:

"A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a non-benefit PP (partnered), family payment, a maternity allowance, a mobility allowance, a pensioner education supplement or a seniors health card if, and only if, the person:

(a)   resides in Australia; and
(b)   is either:
            (i)  a refugee; or
            (ii) a former refugee."

Subsection 7(6AA) reads:

"A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, family allowance, a non-benefit PP (partnered), a maternity allowance, a mobility allowance or a seniors health card if, and only if, the person:

(a)holds a permanent visa and was the former holder of a subclass 820 visa – Extended eligibility (spouse); or

(b)was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or

(c)holds or was the former holder of a subclass 826 visa – Interdependency; or

(d)holds or was the former holder of a subclass 832 visa – Close ties; or

(e)holds or was the former holder of a subclass 833 visa – Certain unlawful citizens; or

(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."

1. The Applicant, as stated above, arrived in Australia on 28 December 1995 on a "Family Reunion Parent" visa, consequently none of the above exemptions apply to him.

2. It was submitted by the Applicant that if after waiting for two years he had applied for and obtained a Newstart Allowance, that is to say on or about 3 December 1997 after the two year waiting period, he could have transferred to a Mature Age Allowance and that in turn would have entitled him to an Age Pension (see paragraph 43(1)(c) of the Social Security Act 1991).

3. As submitted by the Applicant he has been disadvantaged by seeking not to be a burden on the taxpayer and obtaining employment.  Had he been content to remain on Newstart Allowance he would have ultimately been entitled to the Age Pension as a result of obtaining the Mature Age Allowance.  The Applicant's submissions are well set out in diagrammatic form at Document T20.

4. Had the Applicant made a claim for Mature Age Allowance in September 1998, sub 660YBA of the Social Security Act 1991 would have applied to him. That section reads inter alia:

   "(1)    [Requirements to be met to qualify for allowance]   A person is qualified for a mature age allowance in respect of a period if the person fulfils the requirements set out in this section in respect of the period.

   (2)     [Age requirement]   The first requirement is that the person has reached 60 years of age but has not reached pension age.

   (3)     [Requirement to have been in receipt of social security payments]   Subject to subsection (4), the second requirement is that either of the following paragraphs applies to the person:

   (a)the person was receiving a job search allowance or a newstart allowance immediately before the claim lodgment day and has been receiving an income support payment for a continuous period of at least 9 months immediately before the claim lodgment day;

   (b)at any time during the period of 13 weeks immediately before the claim lodgment day the person received a social security pension, a service pension, a widow allowance, a partner allowance, sickness allowance, benefit PP (partnered) or a parenting allowance (other than a non-benefit parenting allowance).

   (4)…

   (5)[Requirement of no recent workforce experience]  The third requirement is that the person satisfies the Secretary that the person has no recent workforce experience.

   (6)…

   (7)[Requirement that person is an Australian resident]  The fourth requirement is that the person is an Australian resident.

   (8)[Requirement that person lives in Australia]  The fifth requirement is that the person is in Australia.

   …"

1. From the abovementioned legislative provisions it is clear that the Applicant would have been entitled to a Mature Age Allowance had he applied for same in September 1998, following a period on Newstart Allowance. 

2. As the legislature stands the Applicant is not entitled to an Age Pension.  His submission that had he not obtained work he would have been entitled to Age Pension is correct and indicates an omission in the Social Security Act 1991 which requires the attention of Parliament. I, however, am bound by the legislation in its present form and therefore must affirm the decision under review.

   I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Senior Member M D Allen

   Signed:        Kwai-Ling Wong           .....................................................................................
     Associate

   Date of Hearing  11 August 2000
   Date of Decision  18 August 2000
   Solicitor for the Applicant         Applicant was self-represented
   Advocate for the Respondent  Ms A Alex,
     Department of Family and Community Services