Ibanez and National Disability Insurance Agency

Ibanez and National Disability Insurance Agency [2021] AATA 4311 (19 November 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/0263
Re:Cristian Suau Ibanez
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member Buxton
Date:19 November 2021
Place:Brisbane

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.................[SGD]......................
Member Buxton

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether applicant meets residence requirement – decision under review affirmed.
Legislation
National Disability Insurance Act 2013 (Cth) s 20, 21, 22, 23, 24, 25, 100, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, 645
Secondary Materials
National Disability Insurance Agency, Access to the NDIS Operational Guidelines, (Web Page) < clause 7.2
REASONS FOR DECISION
Member Buxton
Introduction

In this application Dr Cristian Suau Ibanez (‘the Applicant’) seeks review of a decision made by the National Disability Insurance Agency (‘the Respondent’) to refuse his request for access to the National Disability Insurance Scheme (‘the NDIS’) under provisions of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’).
Background
The Applicant is a gentleman aged in his early 50’s who has been diagnosed with Post-Traumatic Stress Disorder, Major Depressive Disorder, severe stress reaction and Dyslexia.[1] He is a citizen of Chile and Spain and arrived in Australia on 24 November 2019.[2] The Applicant currently resides in Australia as a holder of a Temporary Skill Shortage (‘TSS’) visa subclass 482 that was granted on 31 October 2019.[3]
[1]     Exhibit 6, Respondent’s submissions dated 14 October 2021, [6]; Exhibit 7, Respondent’s submissions dated 4 November 2021, [6].
[2]     Exhibit 3, TB-1c; TB-3a; TB-5e.
[3]     Exhibit 3, TB-4a; Exhibit 5, T5.
In December 2020, the Applicant sought access to the NDIS.[4] On 7 January 2021, the Respondent made a decision to refuse the request for access on the basis that the Applicant did not meet the access criteria in section 21 of the NDIS Act.[5] The Applicant sought internal review of the decision. On 14 January 2021, the Respondent completed an internal review decision made under subsection 100(6) of the NDIS Act and the reviewer confirmed the decision to deny the Applicant access to the NDIS as he did not meet the criteria in section 21 of the NDIS Act.[6]
[4]     Exhibit 5, T1A.
[5]     Exhibit 5, T1C.
[6]     Exhibit 5, T2.
The reviewer provided the following reasons in confirming the decision not to grant the Applicant access to the NDIS:[7]
(a)The Applicant holds a temporary visa and therefore does not meet the residence requirements to meet the access criteria set out in section 23 of the NDIS Act; and
(b)Further assessment of the Applicant’s eligibility in relation to the disability and early intervention requirements were not considered due to the Applicant not meeting the residence requirements.
[7] Ibid.
On 18 January 2021, the Applicant applied to the Tribunal for review.[8]
[8] Exhibit 5, T1.
Issue for determination
In order to meet the access criteria identified in section 21 of the NDIS Act, a person must meet each of the age and residence requirements, as well as meeting either the disability or early intervention requirements. The Respondent accepts that the Applicant meets the age requirements, and further accepts that he resides in Australia.[9] He therefore meets the first of three criteria, in subsection 23(1)(a) of the NDIS Act (set out in full below).
[9] Transcript, P-11, lines 29 – 31.
The issue before the Tribunal is whether the Applicant meets the second criteria of the access requirements set out in in subsection 23(1)(b) of the NDIS Act. In the event that the Applicant were to demonstrate that he meets that aspect of the access provisions, it would be proper to remit the decision with a direction that the Respondent consider whether the Applicant satisfies the remaining criteria for access to the scheme. If he does not, it is proper to affirm the decision and not necessary to consider any other aspects of the remaining criteria.
The Tribunal has therefore confined its consideration to the issue whether the Applicant meets the second criteria of the access requirements set out in in subsection 23(1)(b) of the NDIS Act.
Statutory Framework
By sections 20 and 21 of the NDIS Act, a person can be a “participant” of the NDIS if the person meets the “access criteria”.
Section 21 of the NDIS Act provides:
21 When a person meets the access criteria
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
There are a number of components to the access criteria. The components under sections of the NDIS Act include:
(a)Section 22 provides for “age requirements”;
(b)Section 23 provides for “residence requirements”;
(c)Section 24 provides for the “disability requirements”; and
(d)Section 25 provides for the “early intervention requirements”.
Section 23 of the NDIS Act sets out the residence requirements:
23 Residence requirements
(1)       A person meets the residence requirements if the person:
(a)       resides in Australia; and
(b)       is one of the following:
(i)        an Australian citizen;
(ii)       the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder; and
(c) satisfies the other requirements in relation to residence that are prescribed by the National Disability Insurance Scheme rules.
(2)In deciding whether or not a person resides in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
(3) Without limiting paragraph (1)(c), National Disability Insurance Scheme rules made for the purposes of that paragraph:
(a)may require that a person reside in a prescribed area of Australia on a prescribed date or a date in a prescribed period in order to meet the residence requirements; and
(b)may require that a person has resided in a prescribed area for a prescribed period in order to meet the residence requirements; and
(c)may require that a person continue to reside in a prescribed area of Australia in order to meet the residence requirements.
If a person does not meet all of the three residence requirements, set out in subparagraphs (a), (b) and (c) respectively of subsection 23(1) of the NDIS Act, then they cannot be granted access to the NDIS. Put another way, those requirements are cumulative.
Further, if a person does not meet at least one of the requirements relating to the nature of their residency set out in subsections 23(1)(b)(i), (ii) or (iii) of the NDIS Act, then they cannot satisfy the second of the three cumulative requirements of section 23(1) and, as a result, cannot be granted access to the NDIS. Therefore, unless the Applicant can satisfy one of those requirements by having a permanent entitlement to reside in Australia of one the kinds stipulated in subsections 23(1)(b)(i), (ii) or (iii) of the NDIS Act, then it is not necessary to consider the criteria in section 23(1)(c), or any other aspect of the access criteria, as the Applicant will not be able to gain access to the NDIS.
The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Participant Rules’) form part of the legislative scheme. Neither party made any submissions with respect to any aspect of those rules. Operational Guidelines written by the CEO of the Respondent also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[10] The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (‘the Access Operational Guidelines’). Chapter 7 of the Access Operational Guidelines relates to the residency requirements.
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634, 645.
The Respondent drew the Tribunal’s attention to the Access Operational Guidelines, at clause 7.2, which states:
A permanent visa gives the person to whom it was granted permission to remain in Australia indefinitely.
A special category visa (SCV) is a temporary visa granted to New Zealand citizens subject to satisfying certain character and health requirements. An SCV holder will be a protected SCV holder if:
·the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or
·the person had been in Australia for a period of, or for periods totalling, 12 months during the 2 years immediately before 26 February 2001, and returned to Australia after that day (section 9).
Note, where certain criteria are met, some prospective participants who reside in NSW who are not Australian citizens, holders of a permanent visa or protected SCV holders may still become participants in the NDIS (see Clients of specified NSW disability programs).
The Applicant’s position
The Applicant:
(a)Accepts that he holds a current subclass 482 visa;
(b)Asserts that he has attempted to alter his visa to a subclass 494 visa[11], although this has not been supported by his previous employer, and further asserts that a subclass 494 visa which would provide him with permanent residency;[12] and
(c)Submits that the Department of Social Services (‘DSS’) has clarified his residency status to allow access to Australian public disability services.[13]
[11]    Exhibit 5, T1D, p 296 -297.
[12]    Exhibit 5, T26, p 142.
[13]    Exhibit 1, p 4.
The Applicant has not produced evidence of a permanent visa to remain in Australia indefinitely or permanently. Rather, he confirmed that he is the holder of a medium term skilled worker visa, under subclass 482, which permits him to remain in Australia for up to four years from his date of entry.[14] The Applicant accepts that he is not a citizen of Australia, nor is he a citizen of New Zealand who may hold a special category visa. Therefore, only section 23(1)(b)(ii) is relevant in the further consideration of this review application.
[14] Exhibit 3, TB-32 p 255; Transcript, P-27, lines 41 – 47.
The Tribunal notes that if the Applicant had been provided with (his preferred) subclass 494 visa, this different subclass of visa is nonetheless still temporary. Even if granted, this would not place the Applicant in any different position as he would still not be the holder of a permanent visa. It is of tangential relevance to note that the subclass 494 visa may offer a pathway to permanent residency after a three-year period has elapsed and if various other criteria are met. The Applicant accepts that he is not the holder of such a visa and it is evident that even if he had been granted such a visa, rather than the subclass 482 visa he holds, the three year period could not yet have elapsed has he has only been in Australia since November 2019.
It is necessary for the Tribunal to consider whether the Applicant, as the current holder of a subclass 482 visa, can meet the access criteria, but it is not necessary to further consider what his situation may have been had he been granted a different subclass of visa.
The Applicant submitted that a variety of other factors should be taken into account in determining his request for access to the NDIS. These included factors such as:
(a)Mutual recognition by the Commonwealth of Australia of pension entitlements for persons such as the Applicant who are citizens of Chile and Spain, and who are entitled to permanently reside in the UK;[15]
(b)The preparedness of Centrelink to look favourably on the Applicant’s residential status in considering his application for a disability support pension;[16]
(c)He is the holder of a Medicare card, he pays taxes, contributes to superannuation and is the holder of a Driver’s licence;[17] and
(d)His injury was caused in Australian whilst working pursuant to a continual and permanent work contact.[18]
[15]    Transcript, P-15, lines 35 – 47; P-16, lines 1 – 4.
[16]    Transcript, P-15, lines 13 – 17.
[17]    Transcript, P-27, lines 41 – 47; P-28, lines 1 -7.
[18]    Transcript, P-13, lines 35 – 36.
The Applicant submitted that it was “paradoxical” that he could satisfy the requirements for access to Medicare and income support payments but not for access the NDIS.[19] His case is that he meets the majority of the access criteria – including most of the criteria for residency – and that a practical and benevolent solution should be arrived at in order that he access necessary disability support.[20] The Applicant further submitted that, in order to return to his work, he required access to supports under the NDIS and that it was “ironic” that he was injured at his workplace in Australia and yet could not access a scheme that would fund supports in order to facilitate a return to that work.[21]
[19]    Transcript, P-16, lines 13 – 42.
[20]    Transcript, P-19, lines 17 – 20; P-18, lines 13 – 47. P-19, lines 1 – 7.
[21]    Transcript, P-17, lines 13 – 46; P-18, lines 1 – 11.
The Respondent’s position
The Respondent accepted that the requirement in subsection 23(1)(a) has been met,[22] in that the Applicant has resided in Australia from 24 November 2019, as the holder of a TSS visa subclass 482 that was granted on 31 October 2019.[23]
[22] Transcript, P-11, lines 29 – 31.
[23] Exhibit 7, Respondent’s submissions dated 4 November 2021, [20].
The Respondent has refused the Applicant’s request for access as the Applicant is not an Australian Citizen and holds a subclass 482 Visa.[24] The Respondent submitted that the Applicant holds a TSS visa that is not permanent and is only valid until 31 October 2023, and that the Applicant has not met any of the requirements of subsections 23(1)(b)(i), (ii) or (iii) of the NDIS Act as the Applicant is not:[25]
(a)an Australian citizen, so subsection 23(1)(b)(i) is not met;
(b)the holder of a permanent visa, so subsection 23(1)(b)(ii)) is not met; and
(c)a holder of a special category visa who is a protected SCV holder, so subsection 23(1)(b)(iii) is not met.
[24] Exhibit 3, TB-4a; Exhibit 5, T5.
[25] Exhibit 7, Respondent’s submissions dated 4 November 2021, [21].
In relation to the Applicant’s assertions that the DSS has clarified his residency status to allow access to Australian public disability services, the Respondent’s position is that this clarification related to a lack of clarity in how Australian residency is defined in the Employment Assistance Fund Guidelines.[26] The Respondent submitted that there was no comparable lack of clarity in the NDIS Act.[27]
[26] Ibid, [23].
[27] Ibid.
The Respondent noted that, should the Applicant’s residency status changes in the future, he is able to make a fresh access application to the National Disability Insurance Agency at that time.[28]
[28] Ibid, [25].
Consideration
It is conceded by the Respondent, and the Tribunal finds, that the Applicant meets the age requirements in section 22 of the NDIS and the requirement in subsection 23(1)(a) of the NDIS Act as he resides in Australia. However, the Tribunal finds that the Applicant does not meet any of the three mechanisms provided under subsection 23(1)(b) of the NDIS Act relating to the status of his residence. The Applicant is not a citizen of Australia, he does not hold a permanent visa and he is not the holder of a special category visa.
Given the cumulative nature of the requirements in section 23(1) of the NDIS Act, the statutory criteria for access cannot be met if the Applicant fails to meet:
(d)all of the requirements of subsections 23(1)(a), (b) and (c);
(e)including by meeting at least one of the three requirements set out in subsection 23(b)(i), (ii) or (iii).
Therefore, it is not sufficient for the Applicant to demonstrate that he resides in Australia, and that he meets the majority of the other criteria for access to the NDIS. The Applicant’s submissions and supporting material were focussed, in detail, upon the Applicant’s residency in Australia and the lack of parity between the statutory test for access to the NDIS and his entitlement to other pensions and benefits in Australia. However, the question whether the Applicant resides in Australia, or whether he is entitled to other benefits, is not determinative of the issue now before the Tribunal. It is neither unusual nor surprising that different benefits, pensions or schemes may have different requirements for access. Subsection 23(1)(a) provides that residing in Australia is only the first statutory gateway through which a prospective participant in the NDIS must pass.
The next statutory gateway through which a prospective participant in the NDIS must pass focusses attention on the status, or nature, of the residency of that person. If a prospective participant does not meet at least one of the three residence requirements, set out in subparagraphs 23(1)(b)(i), (ii) and (iii) respectively of the NDIS Act, then they cannot be granted access to the NDIS. There is no scope, in the proper application of the statutory criterial for access to the NDIS, to simply overlook one part of the criteria if the Applicant meets other parts.
The Applicant accepts as a matter of fact that he does not meet any one of the criteria in section 23(1)(b) of the NDIS Act. As a result, he will not be able to gain access to the NDIS and it is proper to refuse his request for access. The Tribunal accepts the Respondent’s submission that there is no lack of clarity in the residency requirements of the NDIS Act. Those requirements are clear and there is no discretion in the decision-maker, or in the Tribunal on review, whether to apply those clear criteria.
The Applicant’s submissions that he has been given other benefits as a resident in Australia, including access to income support payments through Centrelink, and access to Medicare, do not advance his argument with respect to access to the NDIS. The NDIS offers a lifetime of assistance to those who meet various access criteria, including that they must have an entitlement to remain permanently in Australia. The NDIS does not respond to the Applicant’s circumstances where he is entitled to remain in Australia only by virtue of a temporary visa.
If the Applicant’s circumstances change, he may make a fresh request for access to the NDIS to be assessed having regard to all the relevant access criteria.

As the Applicant does not meet the residence requirements, he does not meet the statutory access criteria. It is therefore proper to affirm the decision under review, made on 14 January 2021.
DECISION
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for decision of Member Buxton.
……………[SGD]………………
              Associate
Dated: 19 November 2021
Date of the hearing:      11 November 2021
Date of final closing submissions:                11 November 2021
Solicitor for the Respondent:  Ms Christine Halls
Representative for the Respondent:            Ms Mariel Thornley

[2021] AATA 4311

19 November 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness