Java and Department of Family and Community Servcies
[2001] AATA 433
•21 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 433
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/67
GENERAL ADMINISTRATIVE DIVISION )
Re KHRISTINE JAVA
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr. I.R. Way, Member
Date21 May 2001
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................(Signed)`.............................
I.R. WAY
MEMBER
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – whether applicant required to serve a newly arrived resident's waiting period of 104 weeks from arrival into Australia
Social Security Act 1991: s549D, 549E, s 7(2), 7(6)
REASONS FOR DECISION
Mr. I.R. Way, Member
This is an application by Mr. and Mrs. Carew for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 15 December 2000, affirming a decision made by Centrelink on 29 September 2000 and affirmed by an Authorised Review Officer on 30 October 2000, rejecting a claim by Khristine Java for Youth Allowance and requiring her to serve a newly arrived resident's waiting period of 104 weeks from 9 September 2000.
Mrs. Carew is Khristine's mother and Mr. Carew is her step-father. Mr. and Mrs. Carew are acting on behalf of their daughter, Khristine.
The parties agreed that the Tribunal should proceed to make its decision on the papers before it, without proceeding to a formal hearing. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – 219).
Khristine Java arrived from the Philippines to take up residence in Australia with Mr. and Mrs. Carew on 9 September 2000. She had not resided previously in Australia. Khristine was granted Australian citizenship by descent on 8 August 2000.
Under the provisions of the Social Security Act 1991 (the Act) a newly arrived resident, who has arrived in Australia after 4 March 1997 is required to serve a newly arrived resident's waiting period of 104 weeks from the date of arrival in Australia before becoming eligible for the Youth Allowance.
The principal issue in this matter is whether or not Khristine should be treated as a newly arrived resident from the date of her arrival in Australia.
The relevant provisions of the Act are as set out below.
"SECTION 549D NEWLY ARRIVED RESIDENT'S WAITING PERIOD
549D(1) Basic rule. Subject to this section, a person is subject to a newly arrived resident's waiting period if the person:
(a) has entered Australia on or after 4 March 1997; and(b)has not been an Australian resident in Australia for a period, of or periods totalling, 104 weeks.
7(2) [Australian resident] 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)the holder of a special category visa who is likely to remain permanently in Australia;
(iv)the holder of a special purpose visa who is likely to remain permanently in Australia.
SECTION 549E LENGTH OF NEWLY ARRIVED RESIDENT'S WAITING PERIOD
549E If a person is subject to a newly arrived resident's waiting period, the period:(a)starts on the day on which the person first entered Australia on or after 4 March 1997; and
(b)ends when the person has been an Australian resident in Australia for a period of, or periods totalling, 104 weeks after that day.
7(6) [Qualifying residence exemption for pension benefit or YTA] A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement or a seniors health card if, and only if, the person:
(a) resides in Australia; and
(b) is either:(i) a refugee; or
(ii) a former refugee.
7(6B) [Refugee status] A person is a refugee for the purposes of this section if the person:(a)is taken, under the Migration Reform (Transitional Provisions) Regulations, to be the holder of a transitional (permanent) visa because the person was, immediately before 1 September 1994, the holder of:
(i)a visa or entry permit that fell within Division 1.3 – Group 1.3 (Permanent resident (refugee and humanitarian)(offshore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(ii)a visa or entry permit that fell within Division 1.5 – Group 1.5 (Permanent resident (refugee and humanitarian)(on-shore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(b) …..
(c) is the holder of:(i) a permanent protection visa; or
(ii)a permanent visa of a class referred to in the Table at the end of this subsection; or
(iii)a permanent visa of a class referred to in a declaration of the Minister under subsection 25(1) that is in force.
….."
The SSAT in applying the provisions of the Act as outlined above was satisfied that Khristine is subject to a newly arrived resident's waiting period of 104 weeks commencing on 9 September 2000 and that Khristine did not qualify for a resident's exemption for social security benefit as she was not a refugee, or former refugee, nor did she hold a class of visa as specified in the Act such that she should be given a resident's exemption.
Mr. and Mrs. Carew, in their notice of appeal against the SSAT decision, stated (T1);
"While we understand that the reasons of the SSAT gave for its rejection of our appeal, EG by strictly observing the various provisions of the Social Security Act 1991 and its amendmentments (sic), we don't believe any justice has been achieved for and on behalf of our daughter Khristine, a minor at the time of making applications to Centrelink and to the SSAT.
…..
The basis of our intention to file for an appeal to the Administrative Appeals Tribunal is that at least one if not two Commonwealth Government Departments lack of duty and care in recording Khristine as an Australian Citizen by descent and or loosing (sic) the documents regarding same filed with the Australian Embassy at Manilla in 1988 is the prime reason why our applications to the Department of Immigration to reunite Khristine with us here in Brisbane were rejected several times, before intervention by the Minister for Immigration late last year caused DIMA to issue Khristine with her Australian Citizenship."
At T5 Mrs. Carew explained the circumstances relating to Khristine's natural Australian father and how she met and married her present and only husband. She also explained the process of their immigration to Australia on the basis of a fiancee visa. She stated:
"My fiancee visa was approved on July 15 1988 subject to my obtaining from the Sagay Registrar of births deaths and marriages a delayed registration birth certificate of my Daughter Khristine showing that I was the natural Mother and that ….. was the Father. The 2nd Consul at the time Mr Kenneth Ward, and immigration officers Megan McCrae and Jennifer Cowan made it very clear to me and my Fiance that Khristine had the right to become an Australian Citizen and that upon receipt of her Birth certificate by the Embassy at Manila she would be so registered, in preparation for the time when we wanted to have her join us in Australia.
This was duly filed at the Embassy, my visa was issued and I arrived in Australia on July 25 1988. …..
We married on Oct 23 – 1988 and on Oct 24 I was granted unrestricted Australian residency. I became an Australian Citizen on the 28th June 1991.
Late in Nov 1994 while visiting my daughter and my Mother in the Philippines my husband and I visited the records section at the Australian Embassy Manila to obtain in Khristine's citizenship and birth registration details to complete an application for an Australian Passport to bring Khristine back with us to Australia on Dec 3 1994. The officer in charge told us she could find no record of Khristine or us and that most likely the records had been either destroyed at the bombing of the previous address of our Embassy and that as some surviving records had been purloined in transit ours could have been among them. ….
Fortunately common sense and fairness prevailed and on Aug 8 2000 Khristine was issued her Australian Citizenship by descent and on August 25 was issued her Australian Passport, arriving in Brisbane at 9-30am on Sept 9-2000. …..
We believe that given the unusual circumstances in regard to Khristine's birthrights, and years of delay through no fault of Khristines or ours in obtaining her Citizenship Khristine ought to qualify for such exemption and be granted the Youth Allowance accordingly and not be discriminated against because of acts of terrorism and or any possible departmental incompetance (sic)."
and at T14:
"…. we believe that my daughter is exempt from the provisions of 549D (1) of the Social Security Act because of incompetance (sic) of and mistakes made by the Department of Foreign Affairs and Trade Consular Division of the Australian Embassy Manila in loosing (sic) or destroying my daughters Australian Citizenship registration which resulted in the delay of some years before my daughter could join me here in Australia."
In arriving at its decision, the Tribunal is mindful of the uncontroverted evidence of Mrs. Carew about what would appear to be either bureaucratic mismanagement or acts of terrorism (or both) affecting her attempts to gain recognition of Khristine's Australian citizenship and entry to Australia at a time pre-dating 4 March 1997, which not only led to additional expenditure by Mr. and Mrs. Carew on behalf of Khristine, but also led to a loss of social security benefits that may have been available to her. The Tribunal is mindful that these matters are of great concern to Mr. and Mrs. Carew and have led to considerable disadvantage to the applicant. However, the Tribunal has no discretion in this matter outside of the relevant statutory provisions as set out above. The Tribunal must determine the matter in accordance with those provisions.
After careful consideration of all of the material before it, the Tribunal is satisfied that pursuant to the Act, Khristine is a newly arrived resident, that she does not meet the criteria for a qualifying resident's exemption for social security benefit, and that she is subject to a newly arrived resident's waiting period of 104 weeks commencing on 9 September 2000.
The Tribunal affirms the decision under review.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. I. R. Way, Member
Signed: .....................................................................................
AssociateDate/s of Hearing hearing on the papers
Date of Decision 21 May 2001
Applicant Mr. and Mrs. Carew
Respondent Mr. N. Foster, departmental advocate
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