Joakim and Secretary, Department of Family, Community Services and Indigenous Affairs

[2006] AATA 477

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 477

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/168

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANDREW JOAKIM

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS 

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO, Member

Date 1 June 2006

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal that Mr Andrew Joakim is eligible for age pension at the proportional rate, is affirmed.

..............................................

Rear Admiral A R Horton AO, Member

CATCHWORDS

SOCIAL SECURITY – age pension – requirement for 10 years qualifying Australian residency –– applicant resident for 105 months (8 years 9 months) -  period of residency less than 10 years – eligibility for proportional pension – agreement with Cyprus  – eligible for proportional pension – applicant not eligible for full age pension – the decision under review is affirmed. 

Social Security Act 1991 – sections 7, 43

Social Security (International Agreements) Act 1999 – sections 13, 16, 17, Schedule 11

REASONS FOR DECISION

1 June 2006  REAR ADMIRAL A R HORTON AO, Member   

1.      On 20 January 2005, Mr Andrew Joakim (“the Applicant”) prepared a claim for the Australian Age Pension (as recorded by stamp of the Ministry of Labour and Social Insurance, Cyprus), this being received by Centrelink on 4 February 2005.   A second claim form was lodged on 6 April 2005, and Mr Joakim was granted the age pension at the proportional rate under the Social Security Agreement between Australia and Cyprus effective from 8 April 2005, when he turned 65 years of age.    

2.        In both claims for age pension, Mr Joakim stated that he had arrived in Australia onboard the SS Patris on 26 September 1963, and that he returned to Cyprus on 8 June 1972, a period which he defined as “10 years”.   On 13 June 2005, Mr Joakim sought review of the decision (that he was eligible only for a proportional pension), claiming that as his residency in Australia was of 10 years duration, he was entitled to the full age pension.  The decision in respect of the proportional pension was affirmed by an Authorised Review Officer (“ARO”) on 5 September 2005, and by the Social Security Appeals Tribunal (“SSAT”) on 13 January 2006.

3. On 14 February 2006, Mr Joakim sought review by the Administrative Appeals Tribunal, subsequently accepting that in his absence, the matter be conducted on the papers. This I have done in accordance with the provisions of section 34J of the Administrative Appeals Tribunal Act 1975. The evidence before me is that provided by the Secretary, Department of Family, Community Services and Indigenous Affairs (“the Respondent”) in the form of the documentation (T documents) provided under section 37 of the Administrative Appeals Tribunal Act 1975, and a Statement of Facts and Contentions.

4.        For the reasons given hereunder, I find that Mr Joakim is not entitled to the full Australian age pension, but is entitled to a proportional Australian age pension, and hence the decision of the SSAT is affirmed.

EVIDENCE

5. As noted above, Mr Joakim attests that he arrived in Australia on 26 September 1963 onboard the Patris. The Respondent asserts that whilst a check of the shipping record cannot confirm this date, it does record that the Patris arrived at Fremantle on 17 September 1963 and hence that earlier date becomes the date of the arrival of Mr Joakim in Australia. That being the case, he remained in Australia for 8 years, 8 months and 22 days, equating to 105 months (by rounding up to “whole months” in accordance with section 17 of the Social Security (International Agreements) Act 1999 (“the SS(IA) Act”). Mr Joakim does not dispute that he was resident in Australia for that period, but he does assert that by being in the country from 1963 to 1972 his period of residency for the purposes of eligibility for the age pension is 10 years. There is no evidence before me to suggest that Mr Joakim has spent any period in Australia outside the above dates.

6.        Mr Joakim records that he has been in receipt of a Cypriot old age benefit from 8 April 2003.  This has no particular relevance to the matter before me, which specifically relates to his eligibility for the Australian age pension.  The latter must be considered against the eligibility criteria as laid down for qualifying Australian residency vide subsections 7(5) and 43(1) of the Social Security Act 1991 (“the Act”) and the relevant articles in the SS(IA) Act as they relate to an agreement with Cyprus as defined in schedule 11.

7.        By way of further argument as to his entitlement to the full age pension, Mr Joakim noted in a letter of 13 June 2005 that his 10 year period in Australia covered the most productive years of his life, that he worked:

“most of the time in construction jobs building refineries ships – draglines, living in barracks where other people wouldn’t like to live and work, away from civilisation for a long time.  I looked for and expected a good pension as to live a respected aged (sic) life” 

He reiterated similar views in his application for review by the SSAT.  In his application for review by this Tribunal he stated that his “main reason of disagreement is that the law clearly states “YEARS” and not months, weeks or days”.

LEGISLATION

7. Subsection 43(1) of the Act requires that a person have 10 years qualifying Australian residence to be eligible for the age pension. Subsection 7(5) defines qualifying residency thus:

“7(5) A person has 10 years qualifying Australian residence if and only if:

(a)       the person has, at any time, been an Australian resident for a         continuous period of not less than 10 years; or
(b)      the person has been an Australian resident during more than           one period and:
           (i)       at least one of those periods is 5 years or more; and
           (ii)       the aggregate of those periods exceeds 10 years”

An Australian resident is defined in subsection 7(2) of the Act.

8. Section 5 of the SS(IA) Act refers to the nature of international social security agreements thus:

”Scheduled international social security agreements

(1)

For the purposes of a provision of the social security law, an agreement is a scheduled international social security agreement if:

(a)      the agreement is between Australia and another country; and
(b)      the agreement relates to reciprocity in social security or         superannuation matters; and
(c)      the text of the agreement is set out in a Schedule to this Act.

(2)

The reference in subsection (1) to a scheduled international social security agreement includes a reference to such an agreement as amended, or otherwise affected in its operation, by a further agreement or further agreements between Australia and the other country concerned.

and section 6 refers to the relationship between benefits in another country and eligibility for the Australian age pension.

9. Schedule 11 refers to the Agreement on Social Security between Australia and the Republic of Cyprus and various Articles in that Schedule define the criteria under which this agreement will be augmented and the basis upon which a pension may be calculated. The amount of a pension is in turn calculated in accordance with the provisions of section 13 of the SS(IA) Act in respect of working life residency. In this matter, the accuracy of calculation of the pension for a residency period of 105 months is not the issue, nor has it been questioned. The issue is whether the correct period of residency has been used in the calculations, that is 105 months as currently applied or 10 years as considered the appropriate period by Mr Joakim.

10. Sections 15, 16 and 17 of the SS(IA) Act define the criteria for working life and the basis of calculation of the relevant period for calculation of pension under section 13 and provide as follows:

“- SECT 15
Working life

For the purposes of this Division, a person's working life is the period beginning when the person turns 16 and ending when the person reaches pension age.

SECT 16
Australian working life residence generally

Subject to sections 17 to 22, a person's period of Australian working life residence at a particular time is the number of months in the period, or the aggregate of the periods, during the person's working life during which the person has, up to that time, been an Australian resident.

SECT 17
Calculation of period of residence

(1)      If a person's period of Australian working life residence would, apart   from this subsection, be a number of whole months, the period is to be               increased by one month.

(2)      If a person's period of Australian working life residence would, apart   from this subsection, be a number of whole months and a day or days,               the period is to be increased so that it is equal to the number of months              plus one month.”

Sections 18 to 22 are not relevant to this matter.
CONSIDERATION AND FINDING

11. Mr Joakim arrived in Australia in September 1963 at the age of 23, and left Australia at the age of 32. The evidence is that he was working for much if not all of that time, and the period sits comfortably within the definition of working life at section 15 of the SS(IA) Act.

12. Section 16 specifically requires that a persons period of working life, as required to calculate pension, is “the number of months in the period…during which the person has been an Australian resident”, and section 17 requires that in the event that the number of days in a period do not equal whole months, the period is to be increased so that is equal to “the number of months plus one month”.   That is the case in the matter before me, where the 22 days has been rounded up to a further month, hence arriving at the figure of 105 months.  Whilst the period for qualifying Australian residency is defined as 10 years, contrary to the view of Mr Joakim the law is such that working life, and hence residency in this context, is calculated by months. 

13.      With respect, it is illogical in my view to suggest that a few months at the beginning (or end) of a period in Australia could be considered a “year”.   It would be just as illogical to suggest that a single period in Australia of, say two months, or any other period short of 12 months, could be considered to have been a “year” in the country. 

14. As noted above, the calculation of pension entitlement based on 105 months of working life residency has not been questioned by Mr Joakim, only the matter of whether 105 months or 10 years was the correct period to have been used in considering eligibility for and rate of, the age pension. Accordingly, I have not reconsidered the calculation of the dollar value of his proportional pension. Nor have I considered whether he met the criteria of citizenship or appropriate visa holder (as defined in subsection 7(2) of the Act in respect of meeting the definition of Australian resident), assuming this to have been adequately confirmed by the Respondent when approving the proportional age pension.

15.      In summary, whilst I accept that Mr Joakim worked hard during his period in Australia, often in isolated and difficult conditions, the law is such that his eligibility for an Australian age pension must be considered against the criteria for qualifying residency.  He was not an Australian resident for a period (or aggregated period) for 10 years, nor is there evidence of exemption, and hence he is not eligible for an ordinary age pension.  Thus his situation is considered against the criteria detailed in the Social Security Agreement with the Republic of Cyprus.  Consideration under this latter agreement has resulted in him being eligible for and in receipt of, a proportional pension. 

16.      The decision of the SSAT is affirmed.   

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Associate

Date of Hearing  Hearing on the papers 
Date of Decision  1 June 2006
Representative for the Applicant               Self-Represented
Representative for the Respondent          Ms Susan Mantaring