Jaydev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2010] AATA 332

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 332
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3624

GENERAL ADMINISTRATIVE DIVISION )

Re Sunil Jaydev

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Date6 May 2010
PlaceSydney

Decision
The decision under review is affirmed. This means that the Applicant is not eligible for the Special Benefit allowance.

..................[sgd]...............................
Ms N Bell, Senior Member

CATCHWORDS
SOCIAL SECURITY - Special Benefit - newly arrived resident’s waiting period - substantial change in circumstances - whether the difference between a migrant’s expectations and reality can constitute a change in circumstances - whether depletion of funds after arrival in Australia can constitute a change in circumstances
Secretary, Department of Social Security v Secara (1998) 51 ALD 481
Re Secretary, Department of Social Security and Fomin (unreported, AAT, President Matthews, No S97/422, 12 March 1998)
REASONS FOR DECISION

Ms N Bell, Senior Member

Sunil Jaydev arrived in Perth, Australia from India on 29 March 2009 with a permanent resident visa. He had funds of $1,000 and the promise of accommodation in Perth with a family friend. In spite of making efforts, he had not secured any employment prior to his departure for Australia.
Within one month of his arrival in Australia, Mr Jaydev approached Centrelink to obtain income support. By that stage, Mr Jaydev had, moved from Perth to Sydney and was still searching for employment. His claims for Newstart Allowance and later Special Benefit were rejected by Centrelink. The latter decision was internally reviewed and then reviewed and affirmed by the Social Security Appeals Tribunal. He now seeks review of the rejection of his claim for Special Benefit by this Tribunal.
Over the course of the last year, Mr Jaydev’s wife arrived in Australia, gave birth to their first child and then returned to India with their child; Mr Jaydev continued to search for employment, obtaining some for short periods or on a casual basis; and Mr Jaydev has, at times, suffered poor health. On various occasions,

Mr Jaydev, and his pregnant wife, have had no bed or bedding and insufficient money for food. Mr Jaydev, whose religion requires a strict vegetarian diet, has had to take work that involved the handling of meat and meat products when it was the only work available to him. Mr Jaydev’s time in Australia has been extremely difficult and distressing.
Qualification for Special Benefit requires, among other things, there being no other social security benefit payable to a person; being an Australian resident; and being unable to earn a sufficient livelihood for the person and the person’s dependents because of age, physical or mental disability or domestic circumstances or for any other reason (section 729 of the Social Security Act 1991). There is no dispute that there is no other benefit payable to Mr Jaydev and that he, as the holder of a permanent visa, is an Australian resident. The Secretary disputes that

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Jaydev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 332
Case: [2010] AATA 332
Decision Date: 6 May 2010

CaseChat Overview and Summary

This case involved Mr Jaydev, who sought a review of the decision by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs to deny his eligibility for the Special Benefit allowance. The primary dispute centred around whether Mr Jaydev's circumstances had substantially changed, thereby warranting an exception to the newly arrived residents' waiting period for the Special Benefit. The case was heard and determined by the Administrative Appeals Tribunal (AAT).

The key legal issues the court had to address were whether a newly arrived resident's expectations differing from reality could be deemed a substantial change in circumstances, and whether the depletion of funds after arriving in Australia could constitute such a change. The court needed to interpret the relevant legislative provisions and assess the factual circumstances presented by Mr Jaydev to determine if they met the criteria for an exception to the waiting period.

The court examined Mr Jaydev's situation and concluded that his circumstances, to the extent they had changed, were not beyond his control. Therefore, he remained subject to the waiting period for Special Benefit eligibility. The tribunal affirmed the Secretary's decision, ruling that Mr Jaydev was ineligible for the Special Benefit. This decision was based on the finding that the changes in Mr Jaydev's circumstances were not substantial enough to warrant an exception to the waiting period.

The final orders of the court affirmed the decision under review, meaning that Mr Jaydev remained ineligible for the Special Benefit allowance. The written reasons for the decision were certified and signed by Senior Member Bell, with the hearing held on 7 April 2010 and the decision dated 6 May 2010.

Orders

Orders of the court

The decision under review is affirmed. This means that the Applicant is not eligible for the Special Benefit allowance.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that Mr Jaydev’s circumstances, as far as they substantially changed, were not beyond his control. It follows that he remains subject to the newly arrived residents’ waiting period and Special Benefit should not be paid to him.decision The decision under review is affirmed. This means that the Applicant is not eligible for the Special Benefit allowance. I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member BellSigned:...........................[sgd]................................................... Associate: Lloyd DohertyDate of Hearing 7 April 2010Date of Decision 6 May 2010Date of Written Reasons 6 May 2010Representative for the Applicant Unrepresented Representative for the Respondent Ms Megan Palmer, Sparke Helmore

Ratio Decidendi

Legal Principle Established

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