Jama and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1188

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1188

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/565

GENERAL ADMINISTRATIVE  DIVISION

Re:            ANAB JAMA

Applicant

And:         SECRETARY,
  DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Date:2 December 2005

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

SOCIAL SECURITY – application for parenting payment – New Zealand citizen – whether protected Special Category Visa holder – in Australia four months to 2 November 2000 – in United States of America – whether residing in Australia on 26 February 2001 and temporarily absent – application not within 12 months of 26 February 2001

Social Security Act 1991

REASONS FOR DECISION

2 December 2006

Mr B.H. Pascoe, Senior Member

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 20 April 2005, which affirmed a decision of a Centrelink officer made on 29 June 2004, to reject the applicant's claim for parenting payment on the grounds that she did not satisfy Australian residency requirements.

2.      At the hearing, the applicant, Anab Jama, was unrepresented.  The respondent was represented by Mr W. Zita, an advocate with Centrelink.  The Tribunal was assisted by an interpreter in the Somali language.

3.      The background facts are set out in some detail in the reasons for decision of the SSAT, and can be summarised as:

·   Ms Jama was born in Somali

·   in 1992 she went to Kenya as a refugee and married

·   in 1995 her husband moved to New Zealand and she and her first child followed

·   in 1996 she separated from her husband after the birth of their second child

·   in 2000 her husband moved to Sydney and she and the children followed on 1 July 2000, so that the children could be near to their father and his family members

·   Ms Jama lived in rented accommodation in Sydney

·   On 2 November 2000 Ms Jama departed Australia for the United States of America (the United States) to tend her brother who had a mental illness.  She stayed in the United States until her return to Australia on 20 June 2004

4. To qualify for parenting payment, Ms Jama has to be an Australian resident. Under s 7(2) of the Social Security Act 1991 (the Act) an Australian resident is a person who resides in Australia and is either an Australian citizen; the holder of a permanent resident visa or the holder of a protected special category visa (SCV).  SCVs are automatically issued to New Zealand citizens, of which Ms Jama is one.  However, since 26 February 2001, only "protected" SCV holders qualify as Australian residents so as, in the words of the Explanatory Memorandum to the legislative change, "to place New Zealand citizens taking up residence in Australia on the same basis as other migrants". 

5.      The relevant legislation in relation to protected SCV holders states:

7.(2A)     A person is a protected SCV holder if:

(a)the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or

(b)the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day.

7.(2B)     A person is a protected SCV holder if the person:

(a)was residing in Australia on 26 February 2001; and

(b)was temporarily absent from Australia on 26 February 2001; and

(c)was a special category visa holder immediately before the beginning of the temporary absence; and

(d)was receiving a social security payment on 26 February 2001; and

(e)returned to Australia before the later of the following:

(i)the end of the period of 26 weeks beginning on 26 February 2001;

(ii)if the Secretary extended the person’s portability period for the payment under section 1218C—the end of the extended period.

7.(2C)     A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:

(a)the time is during the period of 3 years beginning on 26 February 2001; or

(b)the time is after the end of that period, and either:

(i)a determination under subsection (2E) is in force in respect of the person; or

(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

7.(2D)  A person who, on 26 February 2001:

(a)was residing in Australia; and

(b)was temporarily absent from Australia; and

(c)was not receiving a social security payment;

is a protected SCV holder at a particular time if:

(d)the time is during the period of 12 months beginning on 26 February 2001; or

(e)the time is after the end of that period, and either:

(i)at that time, a determination under subsection (2E) is in force in respect of the person; or

(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

7.(2E)     A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:

(a)the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or

(b)the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.

7.(2F)      If a person makes an application under subsection (2E), the Secretary must make the determination if:

(a)the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and

(b)the application was made within whichever of the following periods is applicable:

(i)if paragraph (2E)(a) applies to the person—the period of 12 months beginning on 26 February 2001;

(ii)if paragraph (2E)(b) applies to the person—the period of 3 years beginning on 26 February 2001.

The Secretary must give a copy of the determination to the person.

7.(2G)     The Secretary must make a determination under this subsection in respect of a person if the person is a protected SCV holder because of subsection (2B). If the Secretary is required to make such a determination:

(a)the determination must state that the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; and

(b)the determination must be made within the period of 6 months of the person’s return to Australia; and

(c)a copy of the determination must be given to the person.

7.(3)        In deciding for the purposes of this Act whether or not a person is residing 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.

6.      It is clear that Ms Jama was not in Australia on 26 February 2001 nor was she in Australia for a period of 12 months prior to that date.  Consequently, she does not satisfy the requirements of s 7(2A), s 7(2B) or s 7(2C).  Consequently, the only basis on which she can be regarded as a protected SCV holder is to come within s 7(2D), as being a person who, on 26 February 2001, was residing in Australia, but was temporarily absent from Australia; and a determination under s 7(2E)(a) is in force.

7.      Under s 7(2F), the Secretary must make such a determination if he is satisfied that the person satisfies the requirements of s 7(2D) and an application for the determination is made within 12 months of 26 February 2001.  Here it is said that the application for parenting payment in June 2004 was, itself, an application for such determination.  However, if it could be regarded as such an application, it was clearly outside the 12‑month period.  It was submitted by Mr Zita that the legislation should not be interpreted as allowing an unlimited discretion to the Secretary to make a determination beyond the 12 months provided in s 7(2F)(b)(i).

8.      It is clear from the legislation and the Explanatory Memorandum that the intention of s 7(2F) is to allow a period of grace of 12 months for a SCV holder to apply for a determination that such a holder was residing in Australia on 26 February 2001; but temporarily absent on that day.  Given the context of the legislation, I am unable to see that it provides a discretion to the Secretary to make such determination when the application is made over three years after that date.  In addition, it is clearly arguable that the application for the parenting payment could not be considered as an application pursuant to s 7(2E).

9.      Even if such interpretation of s 7(2F) is incorrect, it is necessary for the Tribunal to be satisfied that Ms Jama was residing in Australia on 26 February 2001; but temporarily absent.  In the four months of her original stay in Australia she lived in rented accommodation in Sydney, which was taken over by a friend on her departure to the United States.  She had brought with her from New Zealand some household goods and appliances, but purchased furniture after arrival.  At some time after her departure, the friend sold the furniture on her behalf and sent the proceeds to her.  A television, some white goods, cooking appliances and clothing were kept by him for her on her eventual return to Australia.  She had no other assets in Australia during her absence of some 3½ years.  While her former husband remained in Australia, she had her children with her in the United States and she refused the requests of her former husband to allow him to have the children with him in Australia.  She had no employment, business or financial ties with Australia during her absence.  While accepting her evidence that, initially, she intended to be in the United States for three months only, the facts were that she stayed 3½ years, lived with relatives there and worked in a cousin's shop while assisting her ill brother.  It is not possible to regard her as residing in Australia during any of that period and being temporarily absent in these circumstances.

10.     It follows that Ms Jama did not satisfy the legislative requirements to be a protected SCV holder and, consequently, an Australian resident.

11.     The decision under review should be affirmed.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)       Catherine Thomas

Clerk

Date of Hearing:  4 November 2005

Date of Decision:  2 December 2005
Advocate for the applicant:          Nil – Self‑represented

Advocate for the respondent:       Mr W. Zita, Legal Services Branch