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

This matter concerned an appeal by the Secretary, Department of Social Services, against a decision of the Administrative Appeals Tribunal (AAT) concerning Mr Gilbert's eligibility for Special Benefit. Mr Gilbert, a citizen of Grenada, arrived in Australia on 29 May 2019. He lodged a claim for Special Benefit on 8 November 2019. The AAT had previously set aside a decision by the Department to reject Mr Gilbert's claim, finding that he was qualified to receive Special Benefit.

The primary legal issues before the Tribunal were whether Mr Gilbert was qualified for Special Benefit, whether he was subject to the Newly Arrived Resident’s Waiting Period (NARWP), and if so, whether he qualified for an exemption from serving that period. The relevant legislation included sections of the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth), as well as the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2015 (No.2).

The Tribunal reasoned that Mr Gilbert was subject to the NARWP as he had entered Australia on a partner visa and had not completed the required waiting period. While section 739A(7) of the Social Security (Administration) Act 1999 provides for an exemption from the NARWP if a person has suffered a substantial change in circumstances beyond their control, the Tribunal found that the breakdown of Mr Gilbert's relationship with his Australian citizen wife and the subsequent Family Violence Restraining Order, while significant, did not constitute a substantial change in circumstances beyond his control for the purposes of this exemption. The Tribunal noted that Mr Gilbert's arrival in Australia was a voluntary act, and the subsequent events, while unfortunate, did not remove him from the general application of the NARWP.

Consequently, the Tribunal found that Mr Gilbert was not qualified to receive Special Benefit on 8 November 2019, as he had not served the NARWP and did not meet the criteria for an exemption. The Tribunal set aside the AAT's decision and substituted it with its own finding that Mr Gilbert was not qualified.