Jovan Angelevski and Secretary, Department of Social Services

[2014] AATA 947

[2014] AATA  947

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3158
Re	Jovan Angelevski
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms S Taglieri (Member)
Date	16 December 2014
Place	Hobart

REASONS GIVEN ORALLY AT HEARING

The application for review is dismissed.

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Ms S Taglieri (Member)

CATCHWORDS

Age Pension eligibility; whether qualified residency requirements satisfied; failure to have 5 years continuous residence; decision to refuse claim for age pension was correct.

LEGISLATION

Social Security Act 1991 ss 7(5), 43

WRITTEN REASONS FOR ORAL DECISION

Ms S Taglieri (Member)

INTRODUCTION

1. This case relates to a decision by Centrelink to refuse an application by Mr Angelevski for Age pension. Notice of the decision was given to Mr Angelevski by letter dated 17.9.2013[1]. The reason for refusing to grant the age pension was that the residency requirements under Social Security law were not met. Mr Angelevski appealed to the SSAT and now this Tribunal.

   [1] T7, page 44 T Documents

   QUALIFICATION FOR AGE PENSION

2. For Mr Angelevski to be entitled to receive an Australian Age pension, he had to meet one of the residency requirements imposed by Section 43 of the Social Security Act 1991. In Mr Angelevski’s circumstances it means that he must have 10 years qualifying Australian residence.

3. Qualifying Australian Residence has a particular meaning under the relevant law and is satisfied if, either of two requirements below are met:

   (a)That Mr Angelevski had been an Australian Resident for 10 continuous years; or

   (b)That Mr Angelevski had been an Australian Resident for at least 5 continuous years and in total had 10 years of residence in Australia, when all periods of residence are added together.[2] (“the alternate test”).

   [2] Section 7(5) of the Social Security Act 1991

   EVIDENCE BEFORE THE TRIBUNAL

4. The evidence about Mr Angelevski’s actual residency is not in dispute. The parties agree that Mr Angelevski has actually resided in Australia in 3 different periods. All of the three periods are individually less than 5 years[3] and total only 6.33 years.

   [3] T Documents page 11 and 27

5. The International Agreement between the Australian and the Macedonian Governments[4] has the effect of deeming periods of insurance in Macedonia when Mr Angelevski was living and working there, to be combined and treated as a single period of Australian Residency for the purpose of meeting the residency requirements for Age pension.

   [4] By article 11 of schedule 26

6. The uncontroversial evidence is that Mr Angelevski’s combined insurance periods total 4 years and 8.9 months.[5]  That is less than 5 years. Further, there is a break between the end of the deemed continuous residence (20.3.1963) and the first period of residence in Australia (19.9.1969).

   [5] T 4 at page 15 of T documents

7. There is no evidence capable of demonstrating that Mr Angelevski has been an Australian Resident for 10 continuous years, so the only way he may have been eligible for age pension under the Social Security law, is if he met the alternate test of having a minimum of 5 continuous years residence (actual or deemed by article 11) and a total of 10 years residence. The evidence does not meet the alternate test.

8. The evidence clearly establishes Mr Angelevski has over 10 years of combined residency periods when the actual and deemed periods of residency are added (6.33 plus 4.89 = 11.19). However, the alternate test also requires 5 of those years to be continuous. The evidence does not establish a minimum of 5 years continuous residence as required. Deemed continuous residence under article 11 is capable of satisfying the 5 year minimum continuous residence requirement, but in Mr Angelevski’s case, he only has 4 years and 8.9 months deemed continuous residence under article 11. As such he cannot establish the required minimum of 5 years continuous residence either by actual or deemed residence.

   THE TRIBUNALS FINDINGS

9. The conclusion is that Mr Angelevski fails to meet either of the 2 alternate residency requirements of age pension eligibility applicable to his circumstances. As such the decision to refuse to grant the age pension was correct.

10. As harsh as this decision may seem, because Mr Angelevski is so very close to establishing 5 years of continuous residence by virtue of the deeming effect of Article 11 of the International Agreement, the law is clear and must be applied.

11. If Mr Angelevski considers that there is evidence available of further insurance periods in Macedonia, he ought to obtain written verification of the further insurance periods. If this evidence exists, when added to the already identified insurance periods, he may be able to establish continuous 5 year residence by operation of Article 11. In that event, it would be open to him to make a further application to Centrelink for Australian Age Pension.

    CONCLUSION

12. The decision of 17 September 2013 to reject Mr Angelevski’s claim for Age pension was correct. The application for Review is dismissed.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member)

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Administrative Assistant

Dated

Date(s) of hearing	16 December 2014
Applicant	In person
Solicitors for the Respondent	Mr Brian Sparkes, Program and Litigation Review Branch