Gilbert; Secretary, Department of Social Services and (Social services second review)

Gilbert; Secretary, Department of Social Services and (Social services second review) [2021] AATA 4306 (19 November 2021)
Division:GENERAL DIVISION
File Number: 2020/1910
Re:Secretary, Department of Social Services
APPLICANT

AndColin Gilbert
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:19 November 2021
Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 25 February 2020, which set aside and substituted a decision of a delegate of the Applicant, made on 8 January 2020, to reject the Respondent’s claim for Special Benefit, is set aside and substituted with the decision that on 8 November 2019 the Respondent was not qualified to receive Special Benefit.
...................[Sgd].....................................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
SOCIAL SECURITY – Special Benefit – review of a decision of the Social Services & Child Support Division of the AAT – whether Respondent was qualified for Special Benefit – whether Respondent was subject to the Newly Arrived Resident’s Waiting Period – whether Respondent qualified for exemption from serving Newly Arrived Resident’s Waiting Period – substantial change in circumstances – financial hardship – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – s 30(1)
Restraining Orders Act 1997 (WA)
Social Security Act 1991 (Cth) – ss 7(1), 23(1)(g), 729, 739A, 739A(1), 739A(3), 739(6), 739A(7), 739A(8)
Social Security (Administration) Act 1999 (Cth)
Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for SpecialBenefit) Determination2015 (No 2) – ss 4A, 5A
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Social Services v Secara and Others (1998) 51 ALD 481
SECONDARY MATERIALS
Social Security Guide – Guides to Social Policy Law, Version 1.284 – 3.7.10, 3.7.1.20
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
19 November 2021
INTRODUCTION

The decision under review is a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1), dated 25 February 2020 (the Reviewable Decision). The Reviewable Decision set aside and substituted an earlier decision made by an authorised review officer (ARO) of the Department of Human Services, now called Services Australia (Centrelink) dated 8 January 2020, which rejected Mr Gilbert’s claim, lodged on 8 November 2019, for a Special Benefit (SpB).
SpB is a discretionary income support payment provided to people in severe financial need due to circumstances outside their control. To be eligible for the benefit a person should not be eligible for any other social security allowance or pension, is unable to earn a sufficient livelihood and should be in financial hardship.
The AAT1 found that Mr Gilbert satisfied the requirements of s 739A(7) of the Social Security Act 1991 (the Act) such that he could be exempt from serving the Newly Arrived Resident’s Waiting Period (NARWP), and consequently was qualified for SpB (T2).
The Applicant was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. Mr Gilbert was self-represented and was accompanied and assisted by his Advocate, Mr Winton Willesee. Mr Gilbert gave evidence on affirmation and was cross-examined by Mr Burgess.
BACKGROUND
Mr Gilbert was born in Grenada in 1971 and is a citizen of Grenada (T8/67–68).
On 24 April 2015 in Grenada, Mr Gilbert married Ms KM, an Australian citizen (T5/56).
On 26 June 2015, Mr Gilbert lodged an application for a partner visa. This application was refused by the Department of Immigration and Border Protection on 10 January 2017 (T5/45–54).
On 21 May 2019, Mr Gilbert was granted a partner visa (T16/119), as a result of a decision made by the Migration & Refugee Division of the Administrative Appeals Tribunal, dated 16 January 2019 (Exhibit A1/Annexure A).
On 29 May 2019, Mr Gilbert arrived in Australia (T16/122), together with his two children from a previous relationship. Following their arrival in Australia, they resided with Ms KM in a home owned by her.
On 21 October 2019 at 10:00am Mr Gilbert was served with a Police Order protecting Ms KM, with the order due to expire at 9:45pm on 23 October 2019 (the Police Order) (Exhibit A4/14).
On the morning of 23 October 2019, Ms KM attended a police station and made a statement pertaining to Mr Gilbert breaching the Police Order. Mr Gilbert was arrested that evening and charged with “Breach of a Police Order”. By way of explanation, Mr Gilbert stated: “I thought it expired at 2:00pm, I just wanted my Birth Certificate” (Exhibit A4/14).
On 22 October 2019, the Magistrates Court made an interim Family Violence Restraining Order (FVRO) against Mr Gilbert following application by Ms KM. Ms KM was the person protected by the FVRO which, amongst other things, prohibited Mr Gilbert approaching within 10 metres of Ms KM or entering into or remaining upon Ms KM’s home or any other premises where she lives, works or is educated or be within 50 metres of the nearest external boundary of those premises. The FVRO was for a period of two years (T6/57). At this time Mr Gilbert’s relationship with Ms KM broke down and he was no longer residing with her in her home.
On 8 November 2019, Mr Gilbert lodged a claim for SpB (T8/65–92). At the time Mr Gilbert had been in Australia for just over 23 weeks (T14/110).
On 12 November 2019, the Magistrates Court cancelled the FVRO (Exhibit A1/Annexure B).
On 12 November 2019, Centrelink sent Mr Gilbert a notice informing him that his claim for SpB had been rejected because he failed to book a “Participation and Claim Finalisation appointment” (T9/93). On 2 December 2019, Centrelink sent Mr Gilbert another notice, notifying him that Centrelink had decided to reject his claim for SpB on the basis that he had not served the required NARWP at the time of his claim (T11/99).
On 8 January 2020, the ARO affirmed the decision made on 2 December 2019, to reject Mr Gilbert’s claim for SpB because he had not served the NARWP (T14/109–113).
On 25 February 2020, the AAT1 set aside the decision under review and, in substitution, decided that Mr Gilbert was qualified for SpB as at the date of his claim, and that he satisfied the requirements under s 739A(7) of the Act, such that he could be exempt from serving the NARWP in respect of his SpB claim (T2).
On 1 April 2020, the Applicant lodged the current application for review with the General Division of the Administrative Appeals Tribunal (the Tribunal) (T1/1–3). In the application, the Applicant claimed the AAT1 decision was wrong because (T1/3):
The Social Services and Child Support Division of the Administrative Appeals Tribunal erred in deciding that Mr Gilbert was qualified for Special Benefit payment under section 729 of the Social Security Act 1991 at the date of claim, being 8 November 2019, and that he could be exempt from serving the newly arrived resident’s waiting period pursuant to subsection 739A(7) of the Social Security Act 1991.
ISSUES
In this matter, the Tribunal must decide whether Mr Gilbert was qualified to receive SpB payment in respect to his claim lodged on 8 November 2019. This requires a consideration of whether Mr Gilbert was subject to a NARWP of 208 weeks; and if so, whether he is qualified for an exemption from the NARWP under s 739A(7) of the Act in that he suffered a substantial change in circumstances beyond his control after he first entered Australia; and is in financial hardship.
LEGISLATION AND POLICY
The legislation applicable in this matter is contained in the Act; the Social Security (Administration) Act 1999 (Cth) (the Administration Act); and the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2015 (No.2) (the NARWP Instrument).
Relevant policy is contained in the Guide to Social Policy Law: Social Security Guide

(the Guide). The Tribunal, as a decision maker, will generally apply the policy guidance contained in the Guide unless there are cogent reasons to depart from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
Section 729 of the Act sets out the qualification criteria and relevantly states in part:
(2)The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
(a)no social security pension is payable to the person during the period; and
(b)no other social security benefit is payable to the person for the period; and
…
(3)The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period.
The discretion in s 729 of the Act is subject to the NARWP requirement, and relevantly s 739A of the Act states in part:
(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, by legislative instrument, for the purposes of this paragraph;
is subject to a newly arrived resident’s waiting period.
(2)Subject to this section, if, immediately before the commencement of this subsection, a person was the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subsection, the person is subject to a newly arrived resident’s waiting period.
(3)If:
(a)a person is subject to a newly arrived resident’s waiting period; and
(b)before, on or after the commencement of this subsection, the person applies for a visa that is in a class of visas determined by the Minister, by legislative instrument, for the purposes of this paragraph;
the waiting period:
(c)starts on the day on which the person applied for that visa; and
(d)ends when the person has been in Australia for a period of, or periods totalling, 208 weeks after that day.
(4) If:
(a)a person is subject to a newly arrived resident’s waiting period; and
(b)before, on or after the commencement of this subsection, the person was the holder of a visa that is in a class of visas determined by the Minister, by legislative instrument, for the purposes of this paragraph;
the period:
(c)starts on the day on which the person applied for that visa; and
(d)ends when the person has been in Australia for a period of, or periods totalling, 208 weeks after that day.
(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, 208 weeks after that day.
(6)Neither subsection (1) nor (2) applies to a person if the person holds, or was the former holder of, a visa in a class of visas determined by the Minister, by legislative instrument, for the purposes of this subsection.
(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 after the person first entered Australia.
(8)Neither subsection (1) nor (2) applies to a person if:
(a)the person is a refugee, or a former refugee, at the time the person made the claim for a special benefit; or
(b)the following apply:
(i) before the person made the claim for a special benefit, the person was a family member of another person at the time the other person became a refugee;
(ii) the person is a family member of that other person at the time the person made the claim for a special benefit or, if that other person has died, the person was a family member of that other person immediately before that other person died; or
(c)the person is an Australian citizen at the time the person made the claim for a special benefit.
(9)For the purposes of subsection (8):
(a)family member has the meaning given by subsection 7(6D); and
(b)former refugee has the meaning given by subsection 7(1); and
(c)refugee has the meaning given by subsection 7(6B).
(Original emphasis; notes removed.)
NARWP is defined under definition s 23(1)(g) of the Act as follows: “a special benefit newly arrived resident's waiting period under sections 732 and 739A [of the Act]”.
Subsection 7(1) of the Act provides that the term “permanent visa” has the same meaning as in s 30(1) of the Migration Act 1958, which states in part:
(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.
Additionally, the “legislative instrument” referred to in s 739A(1)(e) of the Act is the NARWP Instrument. Relevantly, the NARWP Instrument provides:
4A Classes of visas for the purposes of paragraph 739A(1)(e) of the Act
For the purposes of paragraph 739A(1)(e) of the Act, classes of visas are:
(a)    Subclass 309 (Partner (Provisional)); and
(b)    Subclass 820 (Partner).
…
5A Classes of visas for the purposes of paragraph 739A(4)(b) of the Act
For the purposes of paragraph 739A(4)(b) of the Act, classes of visas are:
(a)    Subclass 309 (Partner (Provisional)); and
(b)    Subclass 820 (Partner).
(Original emphasis.)
The Guide at 3.7.1.20 relevantly states in part:
3.7.1.20 Payability of SpB
Summary
Even though a person is qualified, SpB may not be payable to the person in the circumstances listed in the following table. If more detail about the circumstance is required, the second column indicates where you will find this.

Circumstances

More details

The person is serving a NARWP.

This topic

NARWP
From 1 January 2019 changes were made to the NARWP for SpB. A person who is granted a permanent visa or temporary partner visa (subclass 309 or 820) on or after 1 January 2019 is subject to a 208 week NARWP for SpB. A person who was a holder of a permanent visa or temporary partner visa (subclass 309 or 820) before 1 January 2019 is subject to a 104 week NARWP for SpB.

(Original emphasis; notes removed.)

Further, the Guide at 3.7.2.20 provides in part:
Changed circumstances that WOULD be considered substantial for the purposes of SpB
Many changes in circumstances apply equally to sponsored and non-sponsored residents and partnered provisional visa holders. The following table provides examples of circumstances that WOULD be considered a substantial change for the purpose of qualification for SpB. The substantial change in circumstances MUST have occurred after the person arrived in Australia.

Change in circumstance

and …

Partner and SpB claimant separate

the SpB claimant was the victim of domestic/family violence

…
Changed circumstances that are NOT substantial for the purposes of SpB
The following situations would NOT be considered a substantial change in circumstances for the purpose of qualification for SpB - where no other extenuating circumstances are involved.
·Claimant and partner are separated but living under one roof.
·Partner and the visa holder separate due to breakdown of the relationship and there is no domestic violence involved.
·Partner misrepresents their circumstances (financial, physical, material) and the partnered provisional visa holder chooses to leave because of this.
·Partner leaves work to study or train, engages in an unprofitable business, resorts to excessive gambling or makes another lifestyle choice that impacts on the couple financially.
·A claim is lodged after 1 January 2012 and the person states they are unaware of the legislative change that removed family member as an exemption from the NARWP for partnered provisional visa holders.

(Original emphasis, notes and examples removed.)

EVIDENCE

The Tribunal had before it the following evidence:
·the “T Documents” (T1–T17, pp 1–140);
·Secretary’s Statement of Facts, Issues & Contentions including annexures A and B, dated 26 June 2020 (Exhibit A1);
·the Applicant's Letter to the Respondent, dated 1 July 2020 (Exhibit A2);
·response received from the Respondent’s advocate, dated 6 July 2020 (Exhibit A3);
·Summonsed Material from the Commissioner of Police, Western Australia, dated 24 June 2021 (Exhibit A4);
·the Respondent’s submission dated 20 July 2020 (Exhibit R1); and
·the oral evidence of the Respondent.
CONSIDERATION
Mr Gilbert provided the following submission via a letter dated 20 July 2020:
I preface this letter by advising that I have had my friend Winton Willesee help me draft this letter. I am not a sufficiently proficient reader and writer of English to do it myself. Neither my friend nor I have any legal background so please excuse any issues the result of that.
Instruction 3.7.2.20 of Guide which notes the changed circumstances that would be considered substantial for the purposes of special benefit includes, its seems to me relevantly, where ‘Sponsor or partner has …… abandoned the SpB claimant (me)’ and ‘the SpB claimant has no other means of support’. In my case I have been abandoned by my sponsor and do not have other means of support.
The relevant change in my circumstances was as a result of [Ms KM] electing to withdraw her permission for me to stay at the house. This was not something I wanted. I did not want to leave the marriage nor the house.
The various documents refer to a ‘breakdown of the relationship’ which to me seems to infer a mutual situation, however in my case it was one sided. [Ms KM] took the decision without any input from me. I contend that the change circumstances were completely beyond my control.
I note the allegations of domestic violence that have formed part of the Applicant reaching her opinion, however I make the following points;
1.The restraining order issued against me was lifted soon after it was applied, and lifted at the request of [Ms KM] who initially sought it;
2. The criminal charges that were issued against me around the time of the FVRO were dropped;
3. I deny any violence against [Ms KM]; and
4. It would seem to make sense to me that in the context of the above the issue of the restraining order, charges and alleged violence be disregarded.
In Paragraph 47 the Applicant refers to the circumstances of the victim and infers the perpetrator is therefore not eligible. Notwithstanding the above, the Guide does not say that a perpetrator is not eligible for the SpB, and any interpretation of the ‘intention’ of the legislation to suit the Applicant should be taken in that context. At times within the submission the Applicant relies on the black letter of things and in other instances seems to prefer reliance on the inferred intention as it suits the Applicant. I would contend that its in this context that the Applicant’s contention that it is not open to the Tribunal to disregard the FVRO be considered.
Paragraph 54 – I understand [Mr T] is now deceased. My friend Winton Willesee has helped me considerably, but his support is not endless and has materially been exhausted. I do not have any other sources of meaningful support.
I look forward to a timely hearing and resolution to this matter.
(Names redacted.)
Mr Gilbert answered questions raised by the Applicant on 1 July 2020, as follows:
Q1:What is your current residency status; that is, are you currently an Australian resident or are you still a resident of Grenada?
A:Colin lives in Australia;
Q2:Are you still on a subclass 100 Partner (Migrant) visa or are you in Australia on a different visa?
A:As far as I am aware Colin’s Visa is unchanged;
Q3:Where are you currently residing?
A:Colin does not have a fixed place to live, at present he moves from hostel to hostel or occasionally sleeps rough as the circumstances permit;
Q4:Can you live with your former partner, [Ms KM]?
A:[Ms KM] will not permit him to stay at her house;
Q5:Do you intend to return to Grenada if your relationship with [Ms KM] has irretrievably broken down?
A:Colin hopes to be able to find work and stay in Australia;
Q6:Do you have any claim over [Ms KM’s] property due to the length of your relationship with her?
A:Colin does not know whether he may have a claim over [Ms KM’s] house or other property. We cannot afford to seek that advice. Nevertheless, from what [Ms KM] has mentioned to me I don’t think the house is of meaningful value net of the mortgage;
Q7:Is [Ms KM] assisting you in any way? If so, how?
A:No
Q8:Where are your children, and why did they suddenly leave the family home in Australia ([Ms KM’s] home)?
A:The Children are in Grenada. [Ms KM] sent them home after she withdrew permission for him to stay in the house. I don’t know why other than she told me it was at least in part for financial reasons insofar as she could not afford to support them;
Q9:What is the status of the criminal charge against you regarding an incident involving one of your daughters?
A:The charges were dropped;
Q10:Have you obtained any employment in the last 6 months?
A:Colin has worked two days unpacking a music festival, potentially greater than six months ago but I am not sure. Otherwise he has not worked;
Q11:Who is providing you with assistance at the moment, and what does that assistance comprise of?
A:Colin is receiving Job Seeker at the moment whilst the residency requirements have been temporarily withdrawn;
Q12:Have you lodged another claim for Special Benefit payment since your previous claim lodged on 8 November 2019? If not, the Applicant notes that it is open to you to lodge a new claim for Special Benefit payment at any time, even while this Tribunal matter is on foot.
A:Colin has not lodged any further claims.
(Names redacted.)

Mr Gilbert’s oral evidence and submissions on his behalf by his advocate included the following:
a.He did not agree that he had to leave Ms KM’s house because of violence, rather because Ms KM thought he had cheated (Transcript/9). He did not want to leave the house, but when asked to do so he complied (Transcript/17).
b.After leaving the house he worked down south on farms picking fruit and worked at a potato factory. Currently, he is living and working on a farm in Gascoyne region north of Perth (Transcript/13–14).
c.The decision that his two children return to Grenada after he left the family home was made by “this fellow who’s in charge of Social Services” and Ms KM, and he “didn’t have anything much to do with it” (Transcript/14).
d.With regard to the breach of the Police Order served on 21 October 2019 (see paragraphs 10 and 11 above), the breach was a genuine mistake by Mr Gilbert who could not read (Transcript/18).
e.Mr Gilbert agreed not to take SpB payments during the period between the appeal and the present time but thinks that those payments “would be very helpful for him to get back on his feet, pay back some moneys that he borrowed to see him through during this time” (Transcript//18).
There were amendments made to the NARWP requirements for SpB, from 1 January 2019, and consequently Mr Gilbert is subject to a NARWP pursuant to s 739A(1)(a) of the Act because he entered Australia on 29 May 2019 (T16/122), which is after 1 January 2019. Further, s 739A(3) of the Act is the relevant provision for determining the start and the end date of the NARWP in this matter.
Pursuant to s 739A(3) of the Act, Mr Gilbert’s NARWP started on 26 June 2015 when he applied for the visa. Section 739A(3)(d) of the Act requires a person to be in Australia in order to serve the NARWP. As Mr Gilbert first entered Australia on 29 May 2019 (T16/119–122), he did not commence serving his NARWP until 29 May 2019. The Applicant contends, and the Tribunal accepts, that Mr Gilbert’s NARWP will end on the day after he “has been in Australia for a period of, or periods totalling, 208 weeks after that date” (Exhibit A1, para 32). Centrelink records show that Mr Gilbert will serve his NARWP by 23 May 2023, if he stays in Australia continuously from 29 May 2019 until 23 May 2023.
Therefore, in this case, SpB would not be payable to Mr Gilbert until he has served his 208 weeks NARWP, even if he met all of the qualification requirements under s 729 of the Act. Subsections 739A(6), (7) and (8) of the Act (see paragraph 23 above) set out exceptions to the requirement to satisfy a NARWP. The Tribunal is satisfied that s 739A(6) and 739A(8) do not apply to Mr Gilbert. The only exception that might be available to Mr Gilbert is that under s 739A(7) of the Act and that is whether he suffered a substantial change in circumstances beyond his control after he first entered Australia.
The full Federal Court considered the meaning of the term “beyond the person’s control” under s 739A(7) of the Act in Secretary, Department of Social Services v Secara and Others (1998) 51 ALD 481, and held that: “[a] change in circumstances would be beyond a person’s control within s 739A(7) where the change was something which the person could do nothing to prevent”.
The Applicant contends that the relevant “change in circumstances” in this case was Mr Gilbert experiencing financial hardship consequent to the breakdown of his relationship with Ms KM and his inability to continue living at her home when the Magistrates Court made an interim FVRO against him on 22 October 2019 (Exhibit A1, para 43). The Applicant further contends that Mr Gilbert caused the change in his circumstances, that the change cannot be found to have been beyond his control, and therefore Mr Gilbert does not satisfy the requirements for exemption from the NARWP under s 739A(7) of the Act (Exhibit A1, para 46).
Instruction 3.7.2.20 of the Guide lists the situation where the “[p]artner and the visa holder separate due to breakdown of the relationship and there is no domestic violence involved” as changed circumstances that are “NOT” substantial for SpB purposes (T4/39). Under a list of changed circumstances that “WOULD” be considered substantial for the purposes of SpB, the Guide includes the situation where the “[p]artner and SpB claimant separate, and the SpB claimant was the victim of domestic/family violence” (T4/38). Having regard to these situations prescribed in the relevant policy, it seems clear to the Tribunal that the NARWP exemption in s 739A(7) would not apply where the breakdown of the SpB claimant’s relationship resulted from the claimant being the perpetrator rather than a victim of family or domestic violence.
The Tribunal notes that on 21 October 2019 the Police were satisfied that a Police Order protecting Ms KM should be made against Mr Gilbert, and on 22 October 2019, the Magistrates Court was satisfied that an interim FVRO should be made against him protecting Ms KM and requiring that Mr Gilbert stay away from her home and refrain from contacting her for a period of two years. This was the result of an incident of family violence perpetrated by Mr Gilbert. The Applicant notes (Exhibit A1, para 48) that Mr Gilbert “gave evidence during the AAT1 hearing that he is facing criminal charges, including for an incident where he slapped his daughter, leading to both of his two children leaving [Ms KM’s] home in Australia and returning to Grenada”.
In her 8 January 2020 “Review Outcome”, the ARO stated (T14/111):
The evidence indicates that you have had to leave the family home due to domestic violence. However, the policy only allows for an exemption for a person who is a victim of domestic violence. As you are the person who is bound by the Family Violence Restraining Order I am not able to consider this change in circumstances for an exemption to the waiting period.
The AAT1 preferred a broad approach in its consideration, “over any more restrictive guidelines set out in the Guide”, and found (T2/7–8):
The tribunal is not satisfied that the nature or extent of domestic violence in this case is clearly established by the evidence. What is established is that Mr Gilbert became homeless when required to leave the marital home, by his wife. The tribunal is satisfied that the evidence establishes that it was neither his wish nor his intention to leave. There are open questions as to whether he had any moral culpability or the extent to which his behaviour had contributed to the outcome. However, from a pragmatic, common-sense perspective, the loss of his abode and the support of his wife was not his decision and was not within his control.
This review is of course de novo, and the Tribunal has regard to the summonsed material produced by the Commissioner of Police, Western Australia (Exhibit A4). The evidence does not show that Mr Gilbert was subject to any domestic violence prior to leaving the marital home such that the changed circumstances envisaged in paragraph [28] above applies. Although the Tribunal considers that it would be inappropriate, but not prohibited, to “go behind” the interim FVRO, in other words for the Tribunal to question whether the interim FRVO should have been made by the Magistrates Court on 22 October 2019, perusal of the summonsed material raises no relevant concerns. Although the interim FVRO was cancelled on 12 November 2019 (four days after Mr Gilbert lodged his claim for SpB), it does not alter the fact that on 22 October 2019 the Magistrates Court was satisfied that the interim FVRO should be made under the Restraining Orders Act 1997 (WA), protecting Ms KM from family violence perpetrated by Mr Gilbert.
The Tribunal agrees with the Applicant’s contention that the question of whether Mr Gilbert suffered a substantial change of circumstances beyond his control “is a point in time consideration” (Exhibit A1, para 50). The relevant date is 8 November 2019, the date on which Mr Gilbert lodged his claim. Prior to that date Mr Gilbert had been subject to and had breached a Police Order protecting Ms KM. As at 8 November 2019, Mr Gilbert’s relationship with Ms KM had broken down, and although as the AAT1 accepted (T2/7) and this Tribunal agrees it was neither his wish nor intention to leave, he was no longer living in Ms KM’s home. The FRVO protecting Ms KM against Mr Gilbert’s behaviour was still in force on the relevant date. The FVRO was cancelled on 12 November 2019, four days after Mr Gilbert lodged his claim for SpB, and is irrelevant to the question of whether the substantial change in Mr Gilbert’s circumstances as at the date of claim was beyond his control.
Having careful regard to all the material before it, including the policy contained in Instruction 3.7.2.20 of the Guide (see paragraph 28 above), the Tribunal finds that the change in Mr Gilbert’s circumstances as at the date of his claim for SpB was not beyond his control. It follows that Mr Gilbert’s circumstances do not support an exemption from serving his NARWP.
In relation to the question of financial hardship, the Applicant notes (Exhibit A1, para 53):
Further, Instruction 3.7.10 of the Guide provides that to qualify for SpB, a person must be unable to receive any other social security pension or benefit and be in financial hardship and unable to obtain or earn a sufficient livelihood for themselves, amongst other things. In this regard, the Secretary notes that the Respondent has contended that he was rendered homeless as a result of the change in his circumstances (T2/6).
In his claim for SpB, Mr Gilbert recorded that he has lived with his friend, Mr TR, since 20 October 2019 (T8/72) and that he does not pay for board or lodgings (T8/77).
Mr Gilbert’s advocate gave evidence at the AAT1 hearing that he has been supporting Mr Gilbert since he was required to leave Ms KM’s home but was not in a position to support him indefinitely (T2/6), and in a written submission stated, “Mr Gilbert is currently residing in a hostel on my account, and accesses food and essentials on my account” (T2/11). The advocate told this Tribunal: “He lived in some awful circumstances, and candidly without my help paying for him to stay in hostels along the way, it’s just unfathomable to think what he would have gone through” (Transcript/18).
This evidence indicates, although not assessed by Centrelink, and the Tribunal does not need to do so in the present proceedings, the Tribunal considers it likely that Mr Gilbert would not have met the requirement that he was unable to receive support from other sources so as to have qualified for SpB in respect of his claim lodged on 8 November 2019.
CONCLUSION
The Tribunal finds that Mr Gilbert did not qualify for SpB payment in respect of his claim lodged on 8 November 2019 because he had not served the NARWP and did not satisfy the exemption to serving the NARWP under s 739A(7) of the Act. It follows that the Tribunal sets aside and substitutes the decision under review.
DECISION
The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 25 February 2020, which set aside and substituted a decision of a delegate of the Applicant, made on 8 January 2020, to reject Mr Gilbert’s claim for Special Benefit, is itself set aside and substituted with the decision that on 8 November 2019 Mr Gilbert was not qualified to receive Special Benefit.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, AM LVO (Retd), Member

................[Sgd]........................................................
Associate
Dated: 19 November 2021

Date of hearing: 9 September 2021

Solicitors for the Applicant: Mr Ashley Burgess, Sparke Helmore Lawyers

Respondent:
Respondent’s Advocate:

In person

Mr Winton Willesee

[2021] AATA 4306

19 November 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Circumstances	More details
The person is serving a NARWP.	This topic

Change in circumstance	and …
Partner and SpB claimant separate	the SpB claimant was the victim of domestic/family violence