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

Mr Jaydev is unable to earn a sufficient livelihood.
Mr Jaydev, having arrived on 29 March 2009, is also subject to a newly arrived resident’s waiting period of 104 weeks during which he may not be paid Special Benefit (sections 732 and 739 of the Act). However, section 739A(7) of the Act provides that a person is not subject to a newly arrived resident’s waiting period if, in the Secretary’s opinion, the person has suffered a substantial change in circumstances beyond the person’s control.
Therefore the first issue for me to consider is whether Mr Jaydev has suffered a substantial change in circumstances beyond his control and may consequently be excepted from the newly arrived resident’s waiting period.
has mr jaydev suffered a substantial change in circumstances beyond his control?
The Federal Court has considered the application of the newly arrived resident’s waiting period on a number of occasions. In Secretary, Department of Social Security v Secara (1998) 51 ALD 481 at 492, 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 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 second that the events or matters be beyond the person's control.
8. Mr Jaydev raised a number of difficulties and events he had encountered since he arrived in Australia.
9. The first was his departure to Sydney from Perth. Mr Jaydev had arranged to stay at the home of his mother’s friend “Val”. He said that once there he was expected to perform household tasks such as washing dishes, helping with cooking, gardening, walking the dog, painting and washing cars. The accumulation of these tasks, Mr Jaydev states, interfered with his ability to look for work. He said he was also asked to limit his time on the family’s computer, which also interfered with his ability to search for work online.
Mr Jaydev said he had difficulty with the food served by the family because he is a strict vegetarian and the family ate and served meat and teased him about his vegetarianism. He also said there was a lot of conflict in the family and they tried to involve him in their conflicts. He said he was very demoralised and humiliated and decided to move to Sydney where his friend Rahul lived and had invited him to stay. He also mentioned that Val had encouraged him to move into a flat with her son as an alternative to living at her house. In the end Val purchased his fare to Sydney from Perth and also lent him $900.
When questioned about his expectations when he had arrived at Val’s house, Mr Jaydev said he had not expected to have to contribute to the household in this way. He referred to a friend who had been a guest of his family for three years without ever contributing to the household in any way at all. Mr Jaydev said he considered he had no option but to leave Val’s house and go to Sydney.
While the circumstances at Val’s home may not have met with with

Mr Jaydev’s expectations and hopes, I do not consider that Mr Jaydev’s disappointment amounts to a substantial change in circumstances as contemplated in the legislation. In addition, he was not forced from Val’s home or forced to travel to Sydney. Rather, it was Mr Jaydev’s choice to do so. This event does not attract exception in section 739A(7) of the Act.
Mr Jaydev stated that he had been living with his friend Rahul in Auburn for approximately four weeks when Rahul’s mother asked him to leave. Without a job, he had been unable to pay the $100 per week rent Rahul’s mother had asked of him. In addition, after a few days, Rahul’s mother no longer offered him food, asked him to pay for the telephone calls they had made to him in Perth and expected him to buy food for the household. Mr Jaydev said that when he left Rahul’s home he had only $500 left even though he had been living on a budget of only $2 per day.
Another development raised by Mr Jaydev was the arrival of his pregnant wife in Sydney. He explained that they had discovered she was pregnant shortly prior to his quitting his job in India and moving to Australia. Mr Jaydefv’s evidence was that his wife delayed her move to Australia until the last date allowed by the airlines, given her pregnacy, before her option to take up her own permanent visa expired. Mr Jaydev’s wife gave birth to a healthy girl on 21 September 2009. However, she and their daughter returned to India to live with Mr Jaydev’s parents in

December 2009.
Mr Jaydev described his living conditions at the time his wife arrived. When he left Rahul and his mother, Mr Jaydev shared a studio flat with Shalini, whom he had met while job searching at Mission Australia. He slept on the carpeted floor of the flat, paying $50 per week rent. Shortly before Mr Jaydev’s wife arrived in June 2009, Shalini rented a two bedroom unit and Mr Jaydev moved residence with Shalini.

Mr Jaydev’s rent subsequently increased. Although he had a bedroom to himself,

Mr Jaydev had no bed and no furniture. It was to this unit that Mr Jaydev’s wife came when she arrived in Australia.
The arrival of Mr Jaydev’s wife in Australia was certainly a change in circumstances, as was the birth of his daughter, but her decision to come to Australia and his decision to quit his job in India and come here were each made with the knowledge of the pregnancy. The pregnancy was a factor known to each of them and a matter to be taken into account in making the final decision to come to Australia. In those circumstances, Mr Jaydev’s wife’s arrival was not an event beyond either his or her control. Deciding not to come to Australia may have involved some loss of opportunity for each of them, but it was an option open to them.
Mr Jaydev points to a number of health problems he has had since coming to Australia. They include an injury to his hand when working at Woolworths as a casual filler and at Primo as a process worker; an infection of his tailbone; neck and back pain; kidney stones; and anxiety.
Mr Jaydev said that his hand injury and his kidney stones, now largely resolved, did not prevent him from working. However, he stated that he sensed that these ailments were the reasons he got no further shifts at Primo given the consequent length and frequency of the breaks he took as well as the requirement for him to be placed on light duties.
In addition to the work Mr Jaydev has had with Woolworths and Primo, he has had work at a call centre and at a furniture store. All of the work has been casual. He continues to work at Woolworths whenever shifts are offered to him.
I note that Mr Jaydev’s neck and back pain have been investigated by x-ray and Dr Lau of Auburn Hospital is of the opinion that it is caused by stress. That stress has also been described by Dr Lau as temporary.
I do not consider that Mr Jaydev has been prevented from obtaining employment by his various medical conditions. The work he has obtained so far has been temporary and casual and, on his own evidence, he was able to do the work albeit with some difficulty. On this basis, I do not consider that his medical conditions, now mostly resolved, amount to a substantial change in circumstances.
I am also mindful of some other matters. Some seven or eight months ago

Mr Jaydev bought a car for $200 and then spent $2,000 to have the car fixed using his earnings from the call centre. Mr Jaydev says he bought the car because he thought it would assist him in obtaining employment. He has since been unable to drive it because he had assumed that his Indian driver’s licence would allow him to drive in Australia. This has not been the case and the vehicle now remains unregistered. It is difficult to reconcile this expenditure that coincided with the time his pregnant wife resided in Australia and his evidence that his wife was forced to sleep without blankets or bedding.
In addition, Mr Jaydev recently traveled back to India. He said he did so in order to obtain treatment for a stomach ailment following a bout of food poisoning. Whilst he was there he obtained local treatment for his kidney stones and for his stress. Mr Jaydev’s evidence was that he returned to Australia because his family could not afford to support him and his prospects are better in Australia now that the job market is improving. Mr Jaydev said he purchased his fare to India with a credit card obtained during his time in Australia.
Mr Jaydev has made a succession of choices, many of which appear to have been imprudent. The first of those was to arrive in Australia with just $1,000 and no confirmed employment; next, he left the accommodation he had in Perth and moved to Sydney where his long term accommodation prospects were less secure, although his employment prospects might have been better; then he spent more than $2,000 on a car that he was not qualified to drive – funds that might better have been directed to accommodating his pregnant wife more suitably; and, most recently, he has incurred a credit card debt in purchasing a return trip to India with no immediate prospect of being in a position to repay that debt. It is not clear that this was necessary for his health or that he could not obtain the necessary treatment in Australia and there is no medical evidence of either possibility. In addition, while

Mr Jaydev was away in India he was not able to work casual shifts at Woolworths and earn much needed income.
It is clear that Mr Jaydev’s time in Australia has been very difficult and distressing him. He has had little luck with employment and has in many ways been living a life almost guaranteed to promote poor health.
However, I am put in mind of the decision of Matthews J in Re Secretary, Department of Social Security and Fomin (unreported, AAT, President Matthews, No S97/422, 12 March 1998) where her Honour stated that in situations where “the immediate cause of the depletion of the [migrants’] funds was the fact that they were inadequate in the first place…[o]ne must then go back to ask whether the inadequacy of the funds was itself beyond their control.”
Justice Matthews commented further in her decision:
The respondents… were very committed to emigrating to Australia. To this end they were prepared to undergo significant sacrifice and hardship. The long‑term benefits of living in Australia were clearly perceived as outweighing the short‑term difficulties. No doubt life in the short‑term has been harsher, and certainly more expensive, than the respondents had anticipated or hoped. But it was a risk they were prepared to take. This being the case, I do not think that they have suffered a substantial change in circumstances beyond their control. It follows that the two year waiting period applies in their case, thus disentitling them from receipt of special benefit.

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 Bell
Signed:...........................[sgd]...................................................
  Associate: Lloyd Doherty
Date of Hearing  7 April 2010
Date of Decision  6 May 2010
Date of Written Reasons  6 May 2010
Representative for the Applicant  Unrepresented
Representative for the Respondent                  Ms Megan Palmer,
Sparke Helmore