Gustav-Adolf Schildt v Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 24

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 24

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/128

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GUSTAV-ADOLF SCHILDT

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date16 January 2007

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - Age Pension - eligibility - Germany - Australia - international agreement

Social Security Act 1991

Social Security (Administration) Act 1999, Sections 11, 29

Social Security (International Agreements) Act 1999, Section 6, Schedule 14

REASONS FOR DECISION

16 January 2007	Associate Professor B W Davis AM (Part-Time Member)
Summary and Decision:

1.      Mr Gustav-Adolf Schildt has sought Australian Age Pension on the basis of residential periods in Australia totalling more than 21 years.  Mr Schildt is German born and receives a German pension, however he has resided in the Philippines for the past six years.  His claim for Australian pension was rejected on grounds he did not meet the eligibility criteria specified in the Social Security (Administration) Act 1999, Section 29.  He appealed the decision, which was reviewed by officers of Centrelink and the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision on 2 August 2006.

2.      The Tribunal has conducted a de-novo review of all available evidence and has concluded Mr Schildt is currently not eligible to receive Australian age pension.  The decision under review is therefore affirmed. 

Reasons for Decision:

3.      Mr Schildt was born in Germany on 26 July 1941, but resided in Australia for two periods from 24 June 1961 to 25 January 1966 and from 12 October 1983 to 6 July 2000, totalling more than 21 years.  He currently resides in the Philippines and has done so since 2 July 2000.

4.      Mr Schildt was 65 years of age on 26 July 2006 and lodged an application for Australian Age Pension with Centrelink on 14 April 2006.  In his claim form and in a covering letter dated 2 April 2006, Mr Schildt declared he lived in the Philippines.

5.      On 28 April 2006 a Centrelink officer, acting as a delegate of the Secretary, Department of Family and Community Services (DFCSIA) determined Mr Schildt was not eligible to claim Australian Age Pension as he lived outside Australia in a country which did not have a social security agreement with Australia.

6.      The decision was reviewed by a Centrelink officer and in a letter dated 25 May 2000 to the applicant, the reasons why his claim could not be accepted were explained to him.  Mr Schildt expressed disbelief that after spending most of his working life in Australia he lost his entitlement because he retired to a country without a social security agreement with Australia.

7.      The matter was further reviewed by an authorised review officer (ARO) of Centrelink on 29 May 2006 and by the SSAT (Social Security Appeals Tribunal) on 2 August 2006.  Both concurred with the original decision ie that Mr Gustav-Adolf Schildt was not eligible to receive an Australian Age Pension because he resided outside Australia in a country which does not have a social security agreement with Australia.

8.      It was noted that Mr Schildt had applied for and been granted German Age Pension from 1 August 2006 and that under the German-Australian Social Security Agreement pension insurance periods accrued from his period in Australia.  Mr Schildt wrote of the financial difficulties he is experiencing trying to live on the amount of German pension, needing treatment for the loss of sight in one eye and regular reviews of his other eye.

9.      The applicant has sought de-novo review by the Administrative Appeals Tribunal, but the latter is bound by Australian statutory provisions and major policy determinations of the Australian government and must determine the correct and preferable decision within that framework.  As earlier indicated the principal issue is whether Mr Schildt is eligible to receive Australian Age Pension, given that he resides in the Philippines.

10.     The Social Security (Administration) Act 1999 (The Administration Act) sets out what a person needs to do to be granted a pension to which they are entitled. Section 11 of the Act requires that the applicant must lodge a claim and Section 29 provides that the claim must be made by a person who:

(a)      is an Australian resident;  and  (b)      is in Australia

Mr Schildt was not ‘in Australia’ when he submitted the claim form to Centrelink, accordingly the Act precludes him from making a claim for payment.

11.     The Australian government has entered into a social security agreement with several countries, Germany is a country with which Australia has an agreement, the Philippines is not such a country.

12.     The Social Security (International Agreements) Act 1999 (the International Act) sets out the terms of each social security agreement Australia has with another country in a Schedule to the Act. Under Section 6 of the International Act, the provisions of a scheduled international social security agreement have effect overriding anything in domestic social security law.

13. The terms of agreement between Australia and Germany are incorporated as Schedule 14 to the International Act, which sets out the provisions and conditions under which each government will extend assistance to eligible persons. As indicated in the letter which Deutsche Rentenversicherung (DR) sent to Mr Schildt on 11 May 2006, the German government determined his entitlement to benefits taking into account particular provisions within that agreement.

14.     Article 5 of that agreement provides:

“... where a person would be qualified for a benefit under the Australian legislation or under this Agreement except for not being an Australian resident and in Australia on the date on which the claim for that benefit is lodged, but:

(a)       is an Australian resident or ordinarily residing in the territory of the Federal Republic of Germany or of a third country with which Australia has       implemented an agreement on social security that includes provision for co-         operation in the lodgement and determination of claims for benefits; and

(b)       is in Australia, the territory of the Federal Republic of Germany or the       territory of that third country,

that person, so long as he or she has been an Australian resident at some time, shall be deemed, for the purposes of lodging that claim, to be an Australian resident and in Australia on that date.”

15. Mr Schildt does not meet the criteria for the article to apply. He does not reside in Australia, nor does the Philippines have a social security agreement with Australia. Consequently the terms of the agreement do not override Section 29 of the Social Security (Administration) Act 1999 and Mr Schildt is currently ineligible to apply or receive Australian Age Pension.

16.     The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-Time Member)

Signed:   R Hunt  (Administrative Assistant)

Date/s of Hearing  Hearing on the papers.
Date of Decision        16 January 2007