Hamid Owaied and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 607

[2013] AATA 607

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5005
Re	Hamid Owaied
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	28 August 2013
Place	Melbourne

The Tribunal affirms the decision under review.

..............................[sgd]..........................................

Regina Perton, Member

SOCIAL SECURITY – special benefit – spouse visa - ineligibility for social security benefits for 104 weeks after arrival – substantial change of circumstances beyond applicant’s control – limited discretion – criteria to be met on date of claim – decision under review affirmed.

Social Security Act 1991 sections 729, 739A

Social Security (Administration) Act 1999 sections Schedule 2 Clause 4

Social Security (Class of Visa – Qualifications for Special Benefit) Determination 2009

Social Security (Class of Visa – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2011

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

The Guide to Social Security Law

REASONS FOR DECISION

Regina Perton, Member

28 August 2013

1. Hamid Owaied arrived in Australia from Kuwait on 22 April 2012 on a subclass 300 prospective marriage visa.  He married an Australian citizen of Iraqi background on 24 May 2012.   On 25 July 2012 Mr Owaied was granted a subclass 820 partner-temporary visa. 

2. On 1 August 2012 Mr Owaied lodged a claim for special benefit.  Centrelink, which administers special benefit on behalf of the respondent, rejected the claim on 3 August 2012 on the basis that Mr Owaied did not meet residence requirements for the visa nor any discretionary criteria.  On 9 August 2012 Mr Owaied sought a review of the decision to reject his claim.  On 17 August 2012 an authorised review officer of Centrelink (ARO) affirmed the decision to refuse the claim for special benefit.  On 22 October 2012 the Social Security Appeals Tribunal (SSAT) also determined that Mr Owaied was not eligible for the benefit.  Mr Owaied lodged an application with the Tribunal on 8 November 2012.

3. The issue before the Tribunal is whether Mr Owaied qualified for special benefit on 1 August 2012. 

4. Special benefit is available in limited circumstances to a person who does not qualify for any other income support payment (section 729 of the Social Security Act 1991 (the Act)).  To qualify, an applicant must hold a visa of a class specified in the Social Security (Class of Visa – Qualifications for Special Benefit) Determination 2009.  As the holder of a subclass 820 visa, Mr Owaied qualifies for special benefit if he meets other specified criteria. 

5. However, another barrier to a person qualifying for a special benefit is the newly arrived residents waiting period of two years before a person is eligible for such a payment (subsections 739A(1) and (2) of the Act).   Mr Owaied, as the holder of a subclass 820 visa, is subject to a two year waiting period (Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2011). Section 739A(7) of the Act allows for the grant of a special benefit to such a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.

6. Guidance on applying section 739A(7) is set out in The Guide to Social Security Law (the Guide) issued by the Secretary.  The guide is government policy and should be applied by the decision maker unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

   MR OWAIED’S PERSONAL CIRCUMSTANCES

7. Mr Owaied, who is aged twenty-seven, completed secondary school in Kuwait followed by a diploma in information technology.  He worked for a telecommunications company in a reception-type role for some five years after that.  Following his engagement to an Australian citizen, he applied for a prospective spouse visa which was granted about a year and a half after his application.

8. Mr Owaied believed that he would be able to gain employment in Australia relatively easily.  Unfortunately this has not eventuated.  He and his wife (and their daughter who was born in January 2013) live in a regional city where a number of companies and industries have shut down and/or downsized considerably in recent times.  He has been unsuccessful in obtaining a job, telling the Tribunal that his limited English language skills have impeded his search.  Mr Owaied has been attending English language classes regularly and is still doing so at present. 

9. Mr Owaied’s wife, Abrar Hafez, was born in Iraq and arrived in Australia at around eight years of age.  She is now 19 years old.  She is currently at home with her baby and plans to return to the tertiary studies she was undertaking prior to the birth of their child. She has hopes of becoming a teacher after completing her studies.  Ms Hafez’s parents are not well off.  Ms Hafez does not know what her parents’ income is but said that they are not in a position to provide much in the way of financial support.  Two of her seven siblings are undertaking tertiary studies and living away from home.  The others are younger and  are still at or below school age.

10. Mr Owaied and his wife are struggling financially.  Ms Hafez was receiving youth allowance as a student prior to the birth of her child.  She is now receiving parental and family tax benefits.  They have fallen behind on their rent and told the Tribunal of their difficulty paying utility bills on time. 

11. Mr Owaied developed a back problem last year.  He said that his back problems affect his sleep.  He could not recall the exact date his back issues first developed but thought it was before he lodged his application for special benefit.  Earlier this year he also developed osteitis pubis which also affects his ability to move. 

12. Mr Owaied has been a patient of Dr Mazen Albatat in Shepparton since July 2012.  In a report dated 10 August 2012, Dr Albatat stated:

    This patient of mine has recurring severe lower back pain, currently on pain killers and attending physiotherapy…

13. In a report dated 5 April 2013, Dr Albatat stated:

    Nature an [sic] length of your professional involvement with him.

    I have been Mr Owaied’s GP since July, 2012.

    Nature and extent of his health issues.

    Mr Owaied suffers from Chronic Back Pain.

    The nature and severity of any symptoms he is exhibiting.

    Mr Owaied suffers from recurrent severe back pains, especially with lifting and bending.

    Current treatment and prognosis.

    Current back care consists of Analgesia and he requires ongoing physiotherapy.  Mr Owaied needs to avoid heavy lifting, prolonged sitting and standing.

    To what extent his ability to work is affected by his health conditions.

    Mr Owaieds current condition directly affects his ability to carry out physical work.

    In your opinion, whether it is the main reason that would prevent him from undertaking any work.

    It is in my professional opinion, Mr Owaieds back condition prevents him from undertaking any physical work.

    Any other matters you consider relevant.

    Mr Owaied also suffers from the medical condition Osteitis Pubis.  This causes pelvic pain and difficulty in walking.

    …

14. In his claim form for special benefit lodged on 1 August 2012, Mr Owaied stated that the reason for the claim was that he had recently had a change to his circumstances, namely the grant of a subclass 820 spouse visa.  In response to a prompt question asking him to explain in detail why you believe you are in hardship and have no other means of support, Mr Owaied indicated that he was a new migrant and needed more time to find a job.  He stated that he depended on his wife’s income which was not enough for both of them. 

15. On 17 August 2012 the ARO wrote a file note (reproduced as is) following a conversation with Mr Owaied:

    I spoke to custr 17/8 – he said he did not know what to do as has not been able to get work – picking season has not started – little work available. He asked if he could get a small amount of payment even – i explained the NARWP and change in circs needed for SpB to be payable.  He agreed there had not been one.  His wife’s family helps them but his father i law has an injury.  I advised him of appeal rights etc – also that he should approach a welfare org to help with rent…I said i had looked at whether his wife could get higher rate of payt but it seems not…    

    IS SPECIAL BENEFIT PAYABLE TO MR OWAIED?

16. Prior to 1 January 2012 a member of a family unit of an Australian citizen, such as a spouse, was eligible for special benefit without a waiting period.  However a change of legislation commencing on 1 January 2012 imposed a two year waiting period on spouses except where there had been a substantial change in circumstances beyond the applicant’s control after arrival in Australia.   Mr Owaied arrived in Australia four months after the change of law.  It had taken about a year and a half from the lodgement of his application for a prospective spouse visa for its grant.  He married an Australian citizen within a few weeks of arrival.  Even though he, his wife and in-laws did not know of the change of law until he approached Centrelink for support after his spouse visa was granted, the Tribunal must determine his claim for special benefit according to the law at the time the application was lodged.

17. As indicated earlier, Mr Owaied is subject to a two year waiting period for a special benefit unless he has suffered a substantial change in circumstances beyond his control.   The Guide sets out the considerations in determining if there has been such a change:

    3.7.2.20 Substantial Change in Circumstances for SpB

    Substantial change in circumstances

    Some newly arrived persons may qualify for SpB during the NARWP, if they have experienced a substantial change in circumstances beyond their control and are able to satisfy the available funds test.

    …

    Factors to consider for newly arrived persons

    Newly arrived persons are required to have attempted to obtain support from all possible alternative sources before being granted SpB. Before SpB can be paid, the delegate must be satisfied that:

    • the change in circumstances is substantial and beyond the person's control, AND

    • they are in financial hardship and are able to satisfy the available funds test, AND

    • they have attempted to obtain a sufficient livelihood. For example, they have attempted to obtain support from their sponsor…, or have attempted to obtain employment, or if sponsored by a business, have attempted to work for their sponsor, AND

    • their available funds or support options were depleted because of the change in circumstances.

    Note: The person is not required to seek support from charity organisations. 

    The newly arrived person may be required to meet an activity test requirement.

    Confirmation of changed circumstances

    All newly arrived persons claiming to be in hardship due to substantially changed circumstances must substantiate their claim with documentation. If necessary, a referral should be obtained for a social worker assessment and assistance.

    Example: A claim that a pre-arranged job fell through would have to be substantiated by evidence both that a job offer existed and that at the time it was withdrawn, the person was in Australia or for a permanent visa holder, they were irrevocably committed to travelling to Australia.

    …

    Available funds

    A newly arrived person's available funds should NOT be taken to be depleted purely because they:

    • cannot obtain or maintain employment, unless there is an exceptional delay…in recognition of qualifications in Australia (1.1.A.320), or

    • have purchased a principal residence, or

    • cannot establish a business, or

    • are limited by the amount of funds they can bring with them when leaving their emigrating country.

    ….

    Recognition of overseas qualifications

    Delays of up to 2 years are possible when overseas qualifications need to be recognised in Australia. If verification has been obtained by Australia Education International - NOOSR (AEI-NOOSR), this would NOT be regarded as an exceptional delay.

    Explanation: The delays are due to requirements for meeting English standards and trade proficiency, and depend on a person's English language ability and level of tertiary or trade qualification.

    Timing of the substantial change in circumstances

    A change of circumstances is only relevant for the purposes of the SSAct if that change of circumstances occurs either:

    • in the case of a permanent visa granted onshore - AFTER the claimant has become an Australian resident, or

    • in the case of a permanent visa granted offshore - AFTER the claimant is 'irrevocably committed' to migrating to Australia, or

    • in the case of a temporary visa holder - AFTER the claimant has arrived in Australia.

    Example 1: After arriving in Australia and becoming an Australian resident, a person suffers a serious long-term illness, which prevents them from working. The illness is deemed severe enough to be considered a substantial change in circumstances and SpB is paid.

    …

    Act reference: SSAct section 739A(7) Newly arrived resident's waiting period

    …

    Partnered provisional visa (PPV) holders

    A subclass 309, 310, 820 or 826 visa holder who lodges a claim on or after 1 January 2012 will be required to have experienced a substantial change in circumstances beyond their control to have the NARWP waived…. The onus is on the person to ensure that they have support in place for the duration of the NARWP. In the event that this support is to be provided by the partner, it is the responsibility of the visa holder to ensure that the partner is in a position to do so.

    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.

Change in circumstance	And...
A sponsor, partner or SpB claimant has a prolonged illness or injury,	is unable to work and/or there are significant medical costs being incurred by the SpB claimant or the partner.
Sponsor or partner loses job through no fault of their own,	the job was organised or commenced prior to the issue of the visa to the SpB claimant.
SpB claimant loses job through no fault of their own,	granted on shore the job commenced prior to grant of the visa and in the case of a temporary visa granted off shore the job was arranged prior to arrival in Australia.
Sponsor or partner dies,	the SpB claimant has no means of support.
Partner and SpB claimant separate,	the SpB claimant was the victim of domestic/family violence.
Child is born or family becomes responsible for a dependent child,	the child has a severe medical condition or a severe disability that incurs significant additional costs to the SpB claimant or partner.
Dependent child develops a severe medical condition, disability or sustains a serious injury,	the SpB claimant is unable to work and/or there are significant medical costs being incurred by the SpB claimant or the partner.
Sponsor or partner becomes a long term prisoner, or is confined long term to a hospital, psychiatric institution or nursing home,	the SpB claimant has no means of support.
Sponsor or partner has been notified as a missing person or has abandoned the SpB claimant,	the SpB claimant has no other means of support.
SpB claimant is the victim of substantiated domestic violence,	has no other means of support.

…

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.

Example 1: Upon arrival in Australia the person finds that the partner has embellished claims of circumstances, living standards and financial support and the claimant decides to leave. The person lodges a claim for SpB. As the onus is on the person to fully investigate the situation into which they are migrating, this is NOT considered to be a substantial change in circumstances beyond the person's control and SpB is NOT paid.

Example 2: The SpB claimant and the partner decide to have a child during the NARWP period. The birth of a child is NOT considered to be a substantial change in circumstances as it is a lifestyle choice over which the couple did have control and SpB is NOT payable.

While there is an expectation that a claimant and their partner are responsible for the decisions affecting their individual situations, mitigating circumstances may exist that require additional deliberation when assessing an individual's claim for SpB. The delegate has the authority to consider all available information regarding the claimant's individual circumstances before deciding if there was a substantial change in circumstances that was beyond the person's control.

1. Ms Bramley, on behalf of the respondent, contended that:

   ·the decision to start a family was not beyond Mr Owaied’s control;

   ·there has been no change of circumstances in respect to Mr Owaied’s proficiency in English;

   ·Mr Owaied’s unemployment is not the result of a change in circumstances.

2. These contentions are consistent with the policy presented in the Guide.  The Tribunal accepts that the policy is consistent with the legislation and is appropriate to adopt.  The Tribunal finds that Mr Owaied’s difficulties he raised at the time of his application for special benefit do not amount to substantial changes in circumstances beyond Mr Owaied’s control.

3. When the Tribunal was first examining the medical evidence concerning Mr Owaied’s back problems, it noted that the identification of his condition took place ten days after Mr Owaied lodged his claim for special benefit.  The Tribunal explored whether his back problems might constitute a substantial change in circumstances. 

4. For social security benefits such as the disability support pension, a claimant can present evidence that within 13 weeks from the date of lodgement, he or she meets the relevant criteria.. However, there is an exception for special benefit set out in clause 4 of Schedule 2 to the Social Security (Administration) Act 1999. 

   4   Start day--early claim

   (1)  If:

   (a)  a person (other than a detained person) makes a claim for a relevant social security payment; and                   

   (b)  the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)  the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

   (2)  For the purposes of subclause (1), the following provisions have effect:

   (a)  subject to paragraph (b), any social security payment, other than special benefit, is a relevant social security payment;

   …

1. In other words, a person seeking special benefit must qualify on the day that he or she lodges the claim.  The Tribunal is unable to consider Mr Owaied’s circumstances that have arisen after the actual date of lodgement when assessing whether special benefit is payable to him.

2. Mr Owaied’s back problems and other medical issues appear to have worsened after the lodgement date.  He appears to already have some back pain prior to the lodgement date but at that time and for some time afterwards, he did not identify this as being a significant barrier to his earning income.  He told earlier decision makers and the Tribunal that it was his lack of fluent English that was his major barrier to obtaining employment.  As indicated earlier, he believed that once he got his subclass 820 visa, he would be able to get some financial support given the difficult circumstances he and his wife found themselves in.

3. The Tribunal finds that Mr Owaied did not qualify for special benefit based on his claim lodged on 1 August 2012.  The Tribunal is unable to consider whether he would have qualified at a later date or would now qualify.

   DECISION

4. The Tribunal affirms the decision under review.

I certify that the preceding 25 (twenty - five) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member

..................[sgd]......................................................

Administrative Assistant

Dated 28 August 2013

Date of hearing	3 July 2013
Applicant	In person
Advocate for the Respondent	Ms A Bramley
Solicitors for the Respondent	Program Litigation and Review Branch, Department of Human Services