ISLAM MANSOUR NIVEIN GABER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 433

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 433

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos 2008/5526, 5527

GENERAL ADMINISTRATIVE DIVISION		)
Re		ISLAM MANSOUR NIVEIN GABER

Applicants

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

Respondent

DECISION

Tribunal Dr T Schafer, Member

Date17 June 2009

PlaceSydney

Decision The decisions under review are set aside and in substitution the Tribunal decides that:
(a) the applicants have suffered a substantial change in circumstances beyond their control that waives the application of subsection 739A(1) of the Social Security Act 1991,and
(b)  the discretion in section 729 to pay special benefit should be exercised in favour of the applicants.
The matter is remitted to the respondent for determination of the rate of payment of special benefit to the applicants.

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

Dr T Schafer
  Member

CATCHWORDS

SOCIAL SECURITY – newly arrived resident’s waiting period – application for special benefit – whether substantial change in circumstances beyond applicants’ control – incorrect advice about eligibility for social security payments – qualification for special benefit – unable to earn a sufficient livelihood – decision under review set aside

Social Security Act 1991 – s 7, 729, 739A

Re Chelechkov and Department of Social Security (AAT 12631, 18 February 1998); 26 AAR 321; 3 SSR 28

Secretary, Department of Social Security v Secara (1998) 89 FCR 151

Re Secretary, Department of Social Security and Tadros (AAT 12649, 26 February 1998)

Re Zoarder and Department of Social Security (AAT 12632, 18 February 1998); 26 AAR 342

REASONS FOR DECISION

17 June 2009 Dr Schafer, Member           

Background

1.      Mr Mansour and Mrs Gaber are a married couple. On 20 August 2005, they arrived in Australia on a subclass 495 visa with their three children. This visa provides for skilled people to work in regional areas or areas of low population growth in Australia and allows the holder of the visa to remain in Australia for a period of three years.

2.      However, after two years, the holders of subclass 495 visas may apply for a subclass 887 visa, which allows the holder to remain in Australia for an indefinite period.

3.      On 4 September 2007, Mr Mansour and Mrs Gaber applied for subclass 887 visas. The visas were granted on 21 May 2008.

4.      On 26 May 2008, Mr Mansour and Mrs Gaber contacted Centrelink to enquire about income support payments. They were advised that new migrants must serve a 104-week newly advised resident’s waiting period (NARWP) before they are eligible for income support payment. They were, however, advised that they might be eligible for special benefit during the NARWP.

5.      On 28 May 2008, Mr Mansour and Mrs Gaber lodged claims for special benefit.

6.      On 3 June 2008, Mr Mansour was advised that his claim for special benefit was rejected on the basis that he had not suffered a substantial change in circumstances beyond his control and was therefore ineligible for special benefit during his two year NARWP.

7.      On 4 June 2008, Mrs Gaber was advised that her claim for special benefit was rejected, also on the basis that she had not suffered a substantial change in circumstances beyond her control and was therefore ineligible for special benefit during her two year NARWP.

8.      On 17 June 2008, an Authorised Review Officer (ARO) affirmed the decisions to reject the Applicants’ claims for special benefit, finding that there had been no substantial change in Mr Mansour’s and Mrs Gaber’s circumstances beyond their control. The ARO noted that Mr Mansour had lost his job in December 2007, but this was before he and Mrs Gaber became Australian residents, which was on 21 May 2008.

9.      On 25 and 26 June 2008, Mr Mansour and Mrs Gaber lodged appeals with the Social Security Appeals Tribunal (SSAT). On 29 August 2008, the SSAT also affirmed the decisions under review, stating that Mr Mansour and Mrs Gaber were subject to the two year NARWP from 21 May 2008 and this waiting period could not be waived because they had not suffered a substantial change in circumstances beyond their control.

10.     On 21 November 2008, Mr Mansour and Mrs Gaber lodged applications with the Administrative Appeals Tribunal (AAT) for review of the SSAT’s decisions.

Issue

11.     The issue that the Tribunal has to decide is whether as at 28 May 2008 the applicants qualified for special benefit and whether special benefit was payable to them.

12.     In determining whether special benefit was payable to the applicants the Tribunal must decide whether there was a substantial change in circumstances beyond Mr Mansour’s and Mrs Gaber’s control which would justify waiving the two year NARWP.

Legislation

13. Section 729(2) of the Social Security Act 1991 (the Act) sets out the qualification criteria for special benefit. In relation to Mr Mansour’s and Mrs Gaber’s claim, the relevant criteria are:

(a)  no social security pension is payable to the person during the period; and

(b)  no other social security benefit is payable to the person for the period; and

…

(e)  the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person’s dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and

(f)  the person:

(i)  is an Australian resident; or

…

14.     For the purposes of the Act an “Australian resident” is defined in subsection 7(2) as follows:

An Australian resident is a person who:

(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.

15.     Thus, for the purposes of the Act, Mr Mansour and Mrs Gaber became Australian residents on 21 May 2008, when they were issued subclass 887 visas and thus became holders of a permanent visa.

16. Special benefit is not payable if a person is subject to a newly arrived resident’s waiting period. Subsection 739A(1) of the Act provides as follows:

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

(e) becomes the holder of a visa that is in a class of visas determined by the Minister, by legislative instrument, for the purposes of this paragraph;

is subject to a newly arrived resident’s waiting period.

17.Section 739A(5) provides as follows:

If:

(a) a person is subject to a newly arrived resident’s waiting period; and

(b) neither subsection (3) nor (4) apply to the person;

the waiting period starts on the day on which the person:

(c) first entered Australia; or

(d) becomes the 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.

18.Subsection 739A(7) provides:

Neither subsection (1) nor (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.

19.     Pursuant to subsections 739A(1) and (5) of the Act, Mr Mansour and Mrs Gaber were subject to a 104-week special benefit NARWP from 21 May 2008, when they became holders of a permanent visa. This period will expire on 20 May 2010, unless Mr Mansour and Mrs Gaber have not remained in Australia for the entire 104-week period.

20.     This means that Mr Mansour and Mrs Gaber will not be eligible for special benefit until, at the earliest, 20 May 2010 unless subsection 739A(7) applies.

21.     The operation of subsection 737A(7) has previously been discussed in Re Chelechkov and Department of Social Security (AAT 12631, 18 February 1998); 26 AAR 321; 3 SSR 28. In that case, Mathews J, a former President of the Tribunal, stated:

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 Amendment Act, by its terms, does not apply to a person who arrives in Australia under the refugee and humanitarian programmes, or a family member of such a person. In relation to pensions and benefits to which the waiting period applies, other than special benefits, there is no discretion to waive the waiting period. The only power to waive the period is that contained in section 739A(7). Unless the applicants can come within the terms of this provision then they cannot succeed in these proceedings…

22.     As stated earlier, subsection 739A(7) of the Act provides that a holder of a permanent visa is not subject to a NARWP if the person, in the Secretary’s opinion, has suffered a substantial change in circumstances beyond the person’s control.

23.     The leading case on the application of subsection 739A(7) of the Act is Secretary, Department of Social Security v Secara (1998) 89 FCR 151, which is a unanimous decision of the Full Federal Court. In that case, Mansfield J stated:

… 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.  There are some circumstances where it is easy to discern its appropriate operation, such as unexpected severe illness, serious accident, or loss of employment.  It is clear that in such circumstances the legislative policy is to permit the affected person to pursue benefits under the SS Act before the newly arrived resident’s waiting period has expired.  Those circumstances will reflect that it is no longer appropriate to oblige the newly arrived person to provide self support for two years.  The two elements which the events or matters constituting the changed circumstances must satisfy are first that the events or matters must be “substantial, that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon, and secondly that the events or matters be beyond the person’s control.

24.     There are also previous decisions of this Tribunal which are relevant to this case. In Re Secretary, Department of Social Security and Tadros (1998) (AAT 12649, 26 February 1998), a substantial change in circumstances was found to have occurred because of a failure by the Australian embassy to provide proper advice; a need for unexpected expenditure resulting in the early depletion of funds; the exhaustion of interim assistance from charity and family; and concomitant health and family issues.

25.     In Re Zoarder and Department of Social Security (AAT 12632, 18 February 1998); 26 AAR 342, the AAT held that the applicant’s severe state of anxiety, which resulted from his family’s financial hardship and inability to obtain employment in Australia, was a substantial change of circumstances beyond his control.

The Decision

Findings of Fact

26.     Mr Mansour spoke with the Tribunal at length about his attempts to secure and maintain long-term employment in Australia. He is a degree-qualified systems engineer and came to Australia to work in this professional field. He told the Tribunal how difficult it has been for him to obtain long-term employment in his chosen profession and believes that discrimination on the basis of his religious beliefs has contributed to his inability to secure long-term employment. Mr Mansour provided to the Tribunal a substantial number of employment applications as evidence of his exhaustive search for employment. In this regard, the Tribunal is satisfied that Mr Mansour has made a concerted effort to become employed.

27.     It is also clear to the Tribunal that Mr Mansour and Mrs Gaber have limited financial means. Although Mrs Gaber receives family tax benefit in respect of the three children and the family receives rent assistance, the family have no other means of deriving an income. Mrs Gaber is not currently able to work because she cares for her three children on a full-time basis. Mr Mansour gave evidence that the family have borrowed money from their extended family overseas, but all of their alternative sources of funds have been depleted.

28.     Mr Mansour stated to the Tribunal that he believes that because the family has been in Australia for more than two years, they should be eligible for social security payments. As support for this belief, Mr Mansour noted that the application form he completed for his subclass 495 visa stated the following:

ACKNOWLEDGEMENT REGARDING SOCIAL SECURITY PAYMENTS

This acknowledgement must be signed by the primary applicant and each accompanying person aged 16 years or over.

I understand that if granted a visa:

·there is a TWO-YEAR wait for social security payments, including unemployment benefits, for most newly arrived migrants;

…

29.     In addition, Mr Mansour provided the Tribunal with a copy of a letter dated 20 July 2005 from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) advising Mr Mansour and Mrs Gaber that their application for subclass 495 visas had been granted. Relevantly, the letter stated as follows:

Temporary visa holders in Australia cannot receive most social security income support payments.  Special Benefits is the only form of government welfare assistance which might be payable.  However, a special benefit payment is only available to new migrants on a very restricted basis - that is, if there has been a substantial change in circumstances beyond the person’s control.  Not being able to find employment or running out of money are not sufficient reasons to qualify for special benefit.

30.     The Tribunal was provided with a blank copy of the application form that Mr Mansour and his wife completed when they applied to enter Australia as skilled migrants. A copy of the blank form was also provided to the SSAT, with a cover letter dated 25 July 2008.

31.     In their deliberations, the SSAT stated that the acknowledgement set out in paragraph 28 above was:

… clearly incorrect and does not apply to holders of visa subclass 495 which is a temporary visa. The statement applies to holders of permanent visas. The statement was not signed in the signature section and therefore it can be assumed that this was not part of the visa 495 application that Mr Mansour and Mrs Gaber had actually completed and lodged. In such a circumstance, the Tribunal cannot be satisfied that the actual application they lodged contained such a statement. It is noteworthy that the Tribunal asked Mr Mansour for a copy of their visa 495 application and he said that they do not have a copy.

32.The SSAT then further stated:

The statement noted under paragraph 31 [reproduced in paragraph 29 above of this decision] should override any previous advice given, given that it was part of the advice notifying Mr Mansour and Mrs Gaber that their 495 visa application has been granted. It would not be unreasonable for one to construe from the earlier part of the statement that temporary visa holders may be paid special benefit. But then the latter part of the statement says that special benefit is only available to new migrants provided there has been a substantial change in their circumstances beyond their control. A person on a temporary visa should not normally be construed as a migrant.  In any case, the least that can be said about the statement is that it is self contradictory, it is confusing and misleading.

33.     In the Tribunal’s view, there were two occasions when Mr Mansour and Mrs Gaber were advised that they might be eligible for some form of social security payment after they had been in Australia for two years: when they completed the application form for their subclass 495 visa and when they received a letter from DIMIA granting their visa. The SSAT incorrectly assumed that the acknowledgement cited in paragraph 28 above was not part of the subclass 495 visa application that Mr Mansour and Mrs Gaber had actually completed and lodged. The Tribunal requested that the Respondent make appropriate enquiries to obtain a copy of the subclass 495 visa application that Mr Mansour and Mrs Gaber completed. By letter dated 6 May 2009, the Respondent provided a copy of the application form dated 1 November 2004 completed and signed by Mr Mansour and Mrs Gaber. That application form included the acknowledgement cited in paragraph 28 above.

Legislation and Case Law

Application of the legislation and case law to the facts

34.     In applying subsection 739A(7) of the Act and the case law to Mr Mansour’s and Mrs Gaber’s case, the SSAT decided that:

… even if it is accepted that the information that the DIMIA’s written materials which, the Tribunal has found to be self contradictory, confusing and misleading led them to believe that their waiting period is 2 years from their arrival in this country, is construed as causing “change” in their circumstances being guided by Tadros, is this “substantial change in circumstances beyond their control”?  The Tribunal concluded in the negative, because it considered that there is no other change that may be brought into this assessment.  Mr Mansour’s issue of lack of employment opportunities in the rural areas is not an issue any more given that he is now in the busiest metropolitan environment with the highest number of job vacancies in Australia.  His issue of discrimination on grounds of his name and religious background should not be an issue for him either given that the population in Sydney is comprised of a huge number of people from his background and huge numbers of them are in employment in his professional field of IT and also security services.

35.     In Tadros, lack of advice provided by the Australian embassy and the exhaustion of interim funds provided by family and charity were seen as contributing to a substantial change in circumstances. In Zoarder, the applicant’s severe anxiety resulting from his family’s severe financial hardship and his inability to gain employment in Australia were seen as a substantial change in circumstances.

36.     It is reasonable to assume that, on the basis of advice received by DIMIA, Mr Mansour and Mrs Gaber came to Australia on the understanding that they would be able to obtain some form of social security payment two years after their arrival in Australia or, alternatively, that their temporary visa provided for the payment of special benefit if there was a substantial change in circumstances beyond their control. It is accepted that Mr Mansour and Mrs Gaber have struggled financially since their arrival in Australia, but held the belief from the information contained in the application form they completed for their temporary visa and the letter from DIMIA dated 20 July 2005 that they would at least be entitled to some form of social security payment after two years of the date of their arrival in Australia.

37.     The incorrect advice provided by DIMIA on two separate occasions quite understandably led to Mr Mansour’s and Mrs Gaber’s assumption that they would be eligible for social security payments after two years of the date of their arrival in Australia. The subsequent advice given to Mr Mansour and Mrs Gaber that they were not entitled to social security payments for two years after their permanent visa had been granted is, in the Tribunal’s view, a substantial change in circumstances beyond Mr Mansour’s and Mrs Gaber’s control. Mr Mansour and Mrs Gaber have financially supported themselves in the interim through whatever means they could. They have exhausted a substantial amount of money in moving to Australia and then moving within Australia over the past three and a half years to try and improve Mr Mansour's employment prospects. They are now in a situation where they have depleted their funds, approximately $40,000 according to a letter written on behalf of the applicants by the Welfare Rights Centre tendered in these proceedings, and have exhausted the possibility of any further financial assistance from their family and charity.

38.     The Tribunal notes that in Zoarder, the applicant’s severe anxiety state, which arose from his family’s financial hardship and his inability to obtain employment in Australia, was seen as substantial change in circumstances beyond his control. Mr Mansour has given ample evidence of his family’s financial hardship and gave extensive evidence of his attempts to gain employment. I do not see why the existence of a “severe anxiety state” in Zoarder should distinguish that case from Mr Mansour’s and Mrs Gaber’s circumstances, but note that the Welfare Rights Centre stated that Mr Mansour has suffered from anxiety and depression, but does not have the financial means to seek treatment. In any case, one would expect that insufficient means to care for three young children would, in any parent’s view, cause a great deal of anxiety. I find that the facts in Zoarder are sufficiently analogous to the facts in this case.

39.     Alternatively, it is sufficient grounds, in my view, to conclude that Mr Mansour’s and Mrs Gaber’s advice on 26 May 2008 that they were ineligible for social security benefits until two years after their permanent visas were granted was a substantial change in circumstances beyond Mr Mansour’s and Mrs Gaber’s control, because the previous advice they had received from DIMIA on two separate occasions was that they would be able to obtain some form of social security payment after two years of the grant of their temporary visas. This incorrect advice may have caused Mr Mansour and Mrs Gaber to continue drawing on the financial support of others, on the understanding that they would be entitled to social security payments after two years of their arrival in Australia. There is no doubt in my mind that this has exacerbated their severe financial hardship.

40.     It is noted that the Respondent accepted that both applicants were not eligible for any other social security benefit or pension and were Australian residents at the time of their applications. The Respondent also conceded that Mrs Gaber was unable to earn a sufficient livelihood as she was a carer of a small child. However, in respect of Mr Mansour, although acknowledging that at the time of his claim he was unemployed and despite being unaware as to whether his unemployment could be attributed to health or domestic circumstances, the Respondent contended that Mr Mansour was not unable to earn a sufficient livelihood.

41.     However, in reviewing the Respondent’s decision, the ARO concluded that Mr Mansour qualified for special benefit and noted relevantly:

I also consulted the MSO at Shepparton CSC … about her contact with Mr Mansour at the time he lodged his claim. [She] indicated that she had ascertained that Mr Mansour had exhausted avenues of financial assistance. She said that she had verified that there was no assistance available from the regional migration program. She said that she had been concerned about Mr Mansour’s welfare because of his financial difficulties and his demeanour during her conversations with him at Shepparton CSC. She said that she felt that his apparent psychological state would be likely to preclude his gaining employment in the IT engineering field, at least in the short term.

42.     I am satisfied from the ARO’s conclusions that Mr Mansour was, in fact, unable to earn a sufficient livelihood at the time the claim was submitted. I consider, therefore, that the criteria in subsection 729(2) have been satisfied and both applicants qualified for special benefit at the time of their claim.

43.     As special benefit is a discretionary payment I must decide whether the discretion to grant special benefit should be exercised in the applicants’ favour in light of all relevant considerations. In considering whether the discretion should be exercised in the applicants’ favour I have paid particular regard to the fact that the applicants have exhausted all financial avenues available to them. My decision is that the discretion in section 729 should be exercised in the applicants’ favour.

DECISION

44.     For the reasons stated above, the Tribunal decides that the decisions under review are set aside and in substitution the Tribunal decides that:

(a) the applicants have suffered a substantial change in circumstances beyond their control that waives the application of subsection 739A(1) of the Social Security Act 1991, and

(b)     the discretion in section 729 to pay special benefit should be exercised in favour of the applicants.

45.     The matter is remitted to the respondent for determination of the rate of payment of special benefit to the applicants.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Schafer, Member

Signed:         ...................[sgd].............................................................
  Associate

Date of Hearing  3 April 2009
Date of Decision  17 June 2009
Solicitor for the Applicants        Self-represented

Solicitor for the Respondent     Ms H Schuster, Centrelink Legal Services Branch