Huynh and Department of Family and Community Services

[2001] AATA 765

DECISION AND REASONS FOR DECISION [2001] AATA 765

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1856

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SUU VAN HUYNH
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date6 September 2001

PlaceSydney

Decision      The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Applicant is entitled to payment of special benefit as from the date of this decision.             

[sgd] Dr J D Campbell
  Member
CATCHWORDS
SOCIAL SECURITY- Vietnamese refugee - New Zealand citizen - application for special benefit - clarification for special benefit - waiting period - substantial change in circumstances beyond the person's control
Social Security Act 1991- ss 729, 732, 739A
Secretary, Department of Social Security v Secara and Ors (1998) 51 ALD 481
Zandieh-Nadem v Secretary, Department of Family and Community Services (2000) 104 FCR 138; (2000) 62 ALD 441
Re Chelechkov and Secretary, Department of Social Security [1998] AATA 94

REASONS FOR DECISION

Dr J D Campbell, Member                    

1. In this matter Mr Suu Van Huynh ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 9 November 2000, which affirms the decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 25 July 2000 to reject the Applicant's claim for special benefit.  The latter decision was affirmed by an authorised review officer on 28 September 2000.

2. A hearing was held before the Tribunal on 2 March 2001, at which the Applicant was represented by Ms Koller, a solicitor from the Welfare Rights Centre.  The Respondent was represented by Ms Smith, an advocate from the Advocacy and Administrative law team at Centrelink.  The Tribunal was assisted by an interpreter fluent in the Vietnamese language.  The Applicant and Mr Do, a culture and art teacher, presented oral evidence to the Tribunal.

3. At the end of the hearing, it was agreed between the parties that the Applicant would be referred for a comprehensive medical examination to be undertaken by the Australian Government Health Service.  This was performed on 3 April 2001 and a report forwarded to both parties.   The Respondent provided a submission on this issue on 15 May 2001.  Submissions on this matter were forwarded to the Tribunal by the Applicant on 1 June 2001 and by the Respondent on 4 June 2001.  A final submission by the Applicant was received by the Tribunal on 8 June 2001.

4. The following material was placed into evidence before the Tribunal:
   Exhibit No  Description      Date    
   T1-28 pp1-77           Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
   A1      Applicant's Statement of Facts and Contentions          27 February 2001   
   A2      Letter from Sister Moore     28 February 2001   
   A3      Letter from Father Van Chi Chu   28 February 2001   
   A4      Letter from Sister Moore     21 May 2001
   A5      Letter from Father Van Chi chu    16 March 2001        
   R1      Respondent's statement of facts and contentions        28 February 2001   
   R2      Medical report of Dr Jones           3 April 2001  

issues

1. The relevant issues in this matter are whether the Applicant:

(a) is qualified for the payment of special benefit;

(b) whether he is subject to a  newly arrived resident's waiting period of 104 weeks; and

(c)  whether the Applicant has suffered a substantial change in circumstances beyond his control, which would warrant the exercise of discretion to waive the waiting period.

legislation

1. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 729, 732 and 739A.
   background

2. The Applicant was born on 15 June 1928 in Vinh Long, Vietnam.  The Applicant attended primary school until he was 11 years of age, thereafter working on the family farm until serving in the Vietnamese army from 1948 until 1975.  Following particular periods of difficulty, the Applicant walked to Thailand via Cambodia in 1990, where he remained in a refugee camp for six years until migrating to New Zealand in February 1996 (T10).   The Applicant became a New Zealand citizen on 31 May 1999 (T11).  The Applicant arrived in Australia on 23 March 2000 and was interviewed by Centrelink on 4 April 2000 and advised of the two year waiting period for special benefit, and the 10 year New Zealand or Australian continuous residency requirement for age pension (T3).

3. On 5 June 2000 the Applicant lodged a claim for special benefit at Centrelink Cabramatta (T6).  A further claim for special benefit was lodged at Cabramatta on 12 July 2000 (T16).  The claim was rejected on 29 July 2000 on the grounds that the Applicant had to be a permanent resident of Australia for 104 weeks before being eligible, and that his circumstances had not changed (T19).  The matter was further reviewed and rejected by the Customer Service Officer at Centrelink on 14 September 2000 (T21).  In a submission, dated 19 September 2000, the same officer stated that, in her opinion, the Applicant's case is not genuine (T24).  The matter was further reviewed and affirmed by an authorised review officer on 28 September 2000 (T26).  Similarly, the matter was reviewed and affirmed by the SSAT in a decision dated 9 November 2000 (T2).
   applicant's evidence

4. The Applicant told the Tribunal that he was born in Vinh Long, Vietnam in 1928 and that he was educated in a French school to the age of 11, after which he stayed home to assist his parents in farming and rice growing.  In 1945 he ceased working on the farm and was a refugee in Saigon because of the war.  He secured a job with the Japanese army, and after they left he was a driving instructor in the French army from 1948 to 1954. He then transferred to the Vietnamese Army as a Sgt Driver during the period 1955 to 1963.  Following a number of different army postings he secured a home posting some 70 miles south of Saigon.  In 1975 he fled from the North Vietnamese Army and went into hiding.  He was captured in 1977 and spent 18 months at both Tay Ninyh and Bien Hoa.  In 1980 he was temporarily released and returned to his family to work the land.  He found the conditions harsh and ran away to Cambodia where he remained until 1984.  He returned to Vietnam and in 1990 again fled Vietnam by walking for six months to Cambodia and then by boat to Thailand, where he was screened in 1991, moved to another camp in 1992 and in 1996 met Sister Moore who was helping in the refugee camp.

5. The Applicant stated that he had been married, but was divorced in 1977.  Of the 15 children, 14 remained in Vietnam, while a daughter and an elder brother resided in the United States.  He had visited the daughter for a month while in the refugee camp, but had not heard from her since.  Similarly, he has lost touch with his elder brother since going to New Zealand.

6. In February 1996 he arrived in New Zealand and was given a six-week course on life in New Zealand, but no English courses.  He lived in a variety of places and experienced difficulty in handling his money, as he could not afford an interpreter.  After a year he applied for, and secured, a self-contained unit at $37 a week in Veterans' accommodation. He was the only Asian in the accommodation.  He tried to grow flowers and vegetables, and spoke with people in the Vietnamese community who would help him when they could.

7. At this time the Applicant stated his health was not so good, and that he was required to attend for examinations and x-rays and was given prescriptions.  At this time the Applicant believed he had some scars on his lung and something inside which required surgery.  He also had poor eyesight and his hearing was not good.

8. The Applicant indicated that he found it particularly cold in New Zealand; that he was unable to save money; and when his two neighbours in his accommodation died, he decided to come to Australia, which he did by borrowing $350 for the airfare and he arrived in Australia with $A100.  Prior to his decision to come to Australia he had heard that the living conditions were not bad and the food was good.  After arrival in Australia, a period of good weather and some financial assistance from Sister Moore ($200), he hoped he would be able to secure accommodation with other Vietnamese people.  Sister Moore had insisted that he make an application for housing and if not successful he should return to New Zealand.  The Applicant's first accommodation was for two weeks in Sydney and then through St Vincent de Paul arranged accommodation (Father Van Chi Chu), but the owner (Housing Commission) resumed occupancy of the house, and thereafter the Applicant moved through a variety of places, with the longest stay being three months in a garage.  Currently he is residing at his current address in a unit per courtesy of the Vietnamese owner and co-tennant.

9. The Applicant stated that he has survived with help from his community, eating what he can find and what people give to him (mainly bread).  Further, people from the churches have helped him and for six months he has attended English classes at the Mormon Church for two hours a day, twice a week.  He does not believe that currently he could do any work, because of his general depression and hunger.  Further, that in the past when he has tried to look for work, he has been told that he is too old.  In all, he has undertaken a half day of work on four to five occasions during the period since his arrival, but feels now that he has poor eyesight, poor hearing, feels tired and has constriction in his throat.  In further comment, the Applicant stated that he has had a night time cough over the last two years, bleeds from the nose in hot weather, has been tired for the last six months, has smoked all his life and has a taste of bitterness in his mouth.  He has suffered headaches as a consequence of beatings received in the re-education camps.

10. At the time of coming to Australia, the Applicant stated that he was full of hope and that when his application for financial support was denied he felt he was at a "dead end".  He finds that he is only able to do little things and that he spends the day walking and talking with people.

11. In response to questions in cross-examination, the Applicant stated that he had been told that it was good in Australia, but did not in any way seek any official advice. More so, he stated that if he had known that he was not entitled to an allowance, he would not have come.  Further, at the age of 73, believing the social security system to be the same, he felt he would be receiving social security support for the rest of his life.
    mr do's evidence

12. Mr Do, a culture and art teacher, told the Tribunal that he met the Applicant some three months prior to the hearing and the Applicant undertook some work for him over a period of two weeks, cutting grass for a few hours each day.  Mr Do was apprehensive about giving the Applicant a job because he was too old, did not seem to be too well, was forgetful, and was concerned that he would try and do too much.
    medical evidence

13. The Applicant was medically examined on 3 April 2001 by Dr Jones, a medical adviser at Health Services Australia.  Dr Jones made the following comments (exhibit R2) :
    1) Chest condition:  gets central chest pain when hurrying up stairs; blood  pressure is 160/90. A Grade IIl "to and fro" systolic/diastolic murmur is present to the left of the sternum. A cardiological assessment is recommended to exclude ischaemic heart disease; produces cough in winter, with some dyspnoea; mobile lump on lower sternum; Chest x-ray shows no evidence of current or past tuberculosis.
    2) Weight, appearance, nutritition:          enjoys food, weight varies; depends on food handouts; difficulty with chewing because of missing teeth; weight 68kg, height 164.5 cm; his BMI 25.129 (slight into overweight category); pathology: all within normal range.
    3) Joints and muscoloskeletal:     normal signal range of movement, but pain with all movements of neck; crepitus of right knee and pain in right shoulder on full upward reach.          
    4) Dysphasia:          not detected 
    5) Headaches:         neck and left-sided scalp pain on movements of neck 
    6) Hearing loss:       significant hearing loss, but requires further testing     
    7) Eyesight:   6/24, 6/36 – corrected vision        

evidence of sister moore

1. Sister Moore, National Coordinator of the Mercy Refugee Service, in her letter dated 28 February 2001, detailed her meeting with the Applicant shortly after his arrival in Australia.  At that time she found him to be very distressed, helpless, emotional and disorientated, when compared with her earlier meetings with him in a refugee camp in Thailand in 1993/94.  In three or four further meetings, Sister Moore considered the Applicant was having grave difficulty in managing his life and that his situation was one of great hardship (Exhibit A2).

2. On 21 May 2001 (exhibit A4) Sister Moore advised that she had seen the Applicant on 11 April 2001 and found that he was confused about where to live and how he would manage to survive, and appeared in great need of personal care and social support.  Sister Moore again visited him on 18 May 2001 and found that he had been given some temporary accommodation by a young Vietnamese couple in order that he did not have to "continue to wander become more confused" (submission of Applicant dated 1 June 2001).
   evidence of father van chi chu

3. Father Van Chi Chu in two letters dated 28 February 2001(Exhibit A3) and 16 March 2001 (exhibit A5), indicated that he and the Catholic community were able to help the Applicant with accommodation, initially, and some food and finance.  However, the house in which temporary accommodation was being afforded to the Applicant unfortunately had to be surrendered, when the Department of Housing raised the rent (Exhibit A5).
   submissions
              applicant

4. The solicitor for the Applicant contends that the Applicant satisfies the qualification provisions for special benefit in that he is "unable to earn a sufficient livelihood…because of age, physical or mental disability or domestic circumstances or for any other reason" (ss729(2)(e) of the Act). The issue in contention is whether the Applicant has suffered a substantial change in circumstances beyond his control, and if so, as the Applicant's matter is one of payability as opposed to qualification, whether payment of special benefit should occur, this being the exception to the general two year rule.

5. In submitting to a substantial change of circumstances having occurred, the Applicant points to a change in his accommodation status, his health, his loss of available work and the difficulties that have eventuated as a consequence of the passage of time and living on minimal assistance.  Further, the Applicant contends that these events have occurred and are beyond his control, in that he has been unable to do anything about the matter.

   respondent

6. The Respondent contends that there has been no substantial change in the Applicant's circumstances since his arrival in Australia, and that the issues of housing, ability to work, health and events associated with the passage of time, are essentially a continuance of circumstances which existed when he first arrived in Australia.
   consideration and finding of facts

7. This matter concerns an individual whose earlier life time experiences (such as re-education camp and prison for three years) have resulted in particular personal trauma.  After a period of some six years in a refugee camp in Thailand, the Applicant arrived in New Zealand in 1996, where in 1999 he was granted citizenship.  During his period in New Zealand the Applicant received social security benefits, and after one year of varying accommodation, the Applicant secured permanent accommodation in a Veterans' hostel.  The Applicant found the cold in New Zealand difficult to bear and after the death of his two neighbours in the hostel, he being the only Asian in the hostel, he borrowed money and flew to Australia where he arrived on 25 March 2000 with $100 in his pocket.

8. In further considering this matter, the Tribunal makes the following finding of facts:

(a) the Applicant made the decision to come to Australia to escape his circumstances in New Zealand and to seek affiliation with a large Vietnamese community in Australia, where the weather is warmer.  The Applicant did not seek to inquire as to the continuity of social security payments, believing that they would continue;

(b) the Applicant was informed by Centrelink on 4 April 2000  that there would be a two year waiting period before payment of special benefit could be made;

(c)  the Applicant did meet with and receive advice from Sister Moore shortly after his arrival.  Sister Moore also provided $200 in cash and together with Father Chi arranged for temporary accommodation in a house.  Sister Moore also advised that he return to New Zealand if special benefit payments was not available;

(d) the accommodation arranged by Father Chi was resumed by the owner a few weeks after the Applicant moved in.  As a result the Applicant has been moving through a variety of accommodation, with the longest being for a period of three months in a garage.  The Applicant is currently a co-occupier in a unit with a young Vietnamese couple;

(e) the Applicant lodged claims for special benefit on 5 June 2000 and 12 July 2000 and these claims were rejected on 29 July 2000.  These decisions were subject to review and affirmation by the authorised review officer on 28 September 2000 and by the SSAT on 9 November 2000;

(f)  since his arrival in Australia, the Applicant has relied upon Sister Moore, Father Chi and the Vietnamese community for both money and food, generally eating two meals a day, with bread being a part of his stable diet;

(g) since his arrival in Australia the Applicant has sought to undertake some gardening activities for Mr Do and others arranged by Mr Do.  On account of his age, general appearance and circumstances, little work has come his way, and because of apparent increasing infirmity there is little opportunity for the Applicant in this regard; and

(h) in relation to his health the Applicant is considered to be in a reasonable nutritional status, with his main medical disabilities being:

• episodic chest pain, worse on climbing stairs;

• apparent significant hearing defect;

• significant visual defect, with corrected vision being 6/24 (pinhole) 6/36.

statutory framework

1. Section 729 of the Social Security Act defines the qualification for special benefit. Subsections 792(2)(e) and (f) of the Act define the circumstances, that are necessary for the Applicant to qualify for special benefit.

2. Subsections 739A(1), (5) and (7) of the Act state that:

   "739A(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
   is subject to a newly arrived resident's waiting period.
   …
   739A(5). If':
   (a) a person is subject to a newly arrived resident's waiting period; and
   the waiting period starts on the day which the person;
   (c) first entered Australia; or
   (d) becomes 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, 104 weeks after that day.
   …
   739A(7) Neither subsection (1) or (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."

3. In moving to a consideration of the facts against the statutory framework, the Tribunal finds that the Applicant is subject to a newly arrived resident's waiting period (ss739A(1)) and that this period is for a period of 104 weeks, commencing on 23 March 2000, (ss739A(5)).  The issue that remains for the Tribunal to consider is whether the Applicant has suffered a substantial change in circumstances and whether such changes are beyond his control (ss739A(7)).

1. Matthews J discussed the operation of this section in Re Chelechkov and Secretary, Department of Social Security [1998] AATA 94 in the following terms at paragraph 20:

   "The general scheme of the Amendment Act was thus to create a two year waiting period for most newly arrived residents, during which they are ineligible to receive most of the benefits otherwise payable under the Act… The only power to waive the period is that contained in ss739A(7). Unless the applicants can come within the terms of this provision, then they cannot succeed in these proceedings."

2. In the Full Federal Court's decision in Secretary, Department of Social Security and Secara and Ors (1998) 51 ALD 481 Mansfield J stated at 492:

   "The intention of the amending Act in introducing the newly arrived resident's waiting period is clear enough. It does not require paraphrasing. Section 739A(7) then is intended to relieve a person recently arrived into Australia from the consequences of the application of that waiting period in certain circumstances… It presupposes a newly arrived person in Australia is in sufficiently needy circumstances as to otherwise qualify, in the case of other Australian residents, for some form of benefit under the Act. It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period. Thus, the change in circumstances cannot be the need itself for the benefit under the Act, as the possible existence of that need underlies the legislative policy that, for two years, it should not be met by benefits payable under the Act…"

3. Further Mansfield J stated  at 492-493in the same matter:

   "In my judgment, the change in circumstances must be some event or events, not necessarily "external" to the person, which creates that need where it did not previously exist or if it did previously exist where it is no longer appropriate to respond to that need by application of the newly arrived resident's waiting period."

4. In Zandieh-Nadem V Secretary, Department of Family and Community Services (2000) 104 FCR138; (2000) 62ALD441, Conti J, in considering the approach taken by the Full Bench in Secara, the phrase "substantial change in circumstances" did not import any requirement that the circumstances be of a particular nature. In that case it was found that a deterioration in bodily and emotional health since arrival could be judged a substantial change in circumstances beyond the person's control.

5. In acknowledging the facts earlier found by the Tribunal in this matter, the Tribunal concludes that there has not been a substantial change in the Applicant's nutritional status, his accommodation status, his financial situation and his apparent, general ability to work. In so concluding, the Tribunal has considered the Applicant's evidence and in particular his apparent status in each of these circumstances at the time of his arrival in Australia.  Further, in relation to his accommodation, the Tribunal concludes that the accommodation arranged by Father Van Chi Chu was but an interim solution and that the Applicant's subsequent accommodation, unfortunately is consistent with an individual with scarce, if any financial resources.

6. The Tribunal has noted throughout that the Applicant came to Australia with particular expectations as to the continuance of some form of social security payment.  In this regard, it would appear that such expectations were born of his limited connections with others in New Zealand and that at no stage did he seek governmental appreciation of his likely circumstances in Australia.  While the Tribunal acknowledges the reasons why the Applicant came to Australia, the Applicant arrived in Australia and set in train a particular set of circumstances, which have as far as the Tribunal can determine, continued to exist without any substantial change, with the exception being his age and health.

7. At the time of his arrival in Australia in March 2000, the Applicant was 72 years of age.  He is now 73 years old and in particular there is evidence that he has significant health conditions/disabilities.  In this regard, the Tribunal finds that his loss of hearing as evidenced by the audiogram is a significant disability, and considers his visual acuity defects to be a significant disability also, in the light of a pinhole corrected vision in the right eye of 6/24 and in the left eye 6/36.  Together, these two disabilities are very significant disabilities in an elderly person, who is prone to wandering in search of food and accommodation.

8. Further, while noting his history of previous pulmonary investigation in New Zealand, the Tribunal notes the presence of an episodic chest pain made worse on climbing stairs.  Without the investigation, (as noted by the assessing Health Service Australia medical practitioner as being desirable), the Tribunal does conclude that in practical terms, effort related activity by the Applicant should be avoided until the matters is clarified, thereby limiting the Applicant's ability to engage in any form of moderate manual work.

9. In the absence of any medical information, other than that of the Applicant at the time of his arrival, the Tribunal, notes the Applicant's evidence as to his health complaints when in New Zealand and at the time of his arrival in Australia, his evidence as to his poor eyesight, and hearing and throat constriction at the time of the hearing and the medical assessment by Dr Jones.  In considering this evidence, the Tribunal concludes that there has been a substantial change in the Applicant's health status since his arrival in Australia, and that this now affects any work capacity that the Applicant may have previously enjoyed.

10. Further, the Tribunal finds that such changes in the Applicant's health circumstances (the level of both his hearing and vision difficulties being significant, both alone and in combination), are of such a nature as to create significant hazards for an individual carrying on an everyday existence.  More so, the Tribunal finds the Applicant's deterioration in his physical health since his arrival are of such a nature that they can be judged as a substantial change in circumstances beyond the Applicant's control (Secretary, Department of Social Security v Secara and Ors [supra] considered and followed).

11. As a consequence of the Tribunal's findings, the Tribunal concludes that the Applicant qualifies for special benefit and that this should be paid from the date of the Tribunal's determination.
    determination

12. The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Applicant is entitled to payment of special benefit as from the date of this decision.

    I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

    Signed:l        .....................................................................................
      Associate

    Date/s of Hearing  2 March 2001
    Date of Decision  6 September 2001         
    Solicitor for the Applicant         Ms S Koller
    Solicitor for the Respondent    Ms A Smith