Kamalathevan and Secretary, Department of Social Services (Social security) - [2025] ARTA 765

Kamalathevan and Secretary, Department of Social Services (Social security) [2025] ARTA 765 (19 February 2025)

Applicant: Ms Kamalathevan

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Numbers: 2024/S190732 & 2024/S191232
Tribunal:General Member N Foster
Place:Brisbane
Date:19 February 2025

Decision:The Tribunal affirms the decisions under review.

CATCHWORDS

SOCIAL SECURITY – Youth Allowance – newly arrived resident’s waiting period – orphan relative – dependent family member of refugee at relevant times – financially reliant on brother while living in third country and Australia – parental role after parents’ deaths – mother still alive and brother in immigration detention when brother’s permanent protection visa granted, so applicant not dependant then – decisions under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

This review is about whether Ms Kamalathevan can be granted youth allowance and, in particular, whether a newly arrived resident’s waiting period (NARWP) applies to her.
Ms Kamalathevan was born in Afghanistan in May 2002. She arrived in Australia on [in] April 2023 as the holder of a Subclass 117 visa, which is a permanent residence visa that allows an orphan to come to Australia and live with a relative.
On 17 April 2023 Ms Kamalathevan claimed youth allowance. On 1 June 2023 Services Australia (Centrelink) rejected the claim on the basis that a NARWP of 104 weeks applied to Ms Kamalathevan.
On 20 June 2024 Ms Kamalathevan claimed youth allowance again. On 25 June 2024 the Welfare Rights Centre, acting on Ms Kamalathevan’s behalf, requested a review of the rejection of her initial claim. On 11 July 2024 an authorised review officer affirmed Centrelink’s decision. In doing so, the authorised review officer found that, because of the delay in requesting a review, any favourable decision could only have effect from 25 June 2024, a date that was after the date of Ms Kamalathevan’s second claim for youth allowance.
On 16 July 2024 Centrelink also rejected Ms Kamalathevan’s second youth allowance claim. On 25 July 2024 a different authorised review officer affirmed this decision. In concluding that a NARWP continued to apply, the authorised review officer found that Ms Kamalathevan could not be exempted as the dependent child of a refugee given that she was 22 years old on the date that she made her second claim for youth allowance.
Ms Kamalathevan applied to the Administrative Appeals Tribunal[1] on 3 September 2024 and 23 September 2024. These applications were heard by the Tribunal on 14 February 2025, with Ms Kamalathevan and her representative, Mr Julius Golab of the Welfare Rights Centre, appearing by telephone. Ms Kamalathevan gave sworn evidence and was assisted at the hearing by an interpreter in the Dari language.

CONSIDERATION

[1] From 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

What are the relevant laws and issues?

Under subsection 549(1) of the Social Security Act 1991 (the Act), youth allowance is not payable to a person if they are subject to a waiting period. Under subsection 549D(1) of the Act, a person is subject to a NARWP if they have entered Australia and have not been an Australian resident in Australia for a specified period of time. Although amendments to the Act increased this period from 104 weeks to 208 weeks with effect from 1 January 2019, the period for a holder of a Subclass 117 visa continues to be 104 weeks – see paragraph 21(7)(a) of Schedule 1 to the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018.
In certain situations, the NARWP imposed by subsection 549D(1) of the Act does not apply. Of particular relevance to the current case, paragraph 549D(7)(b) states:
(7)  Subsection (1) does not apply to a person if:
(b)  the following apply:
(i)  before the person made the claim for a youth allowance, the person was a family member of another person at the time the other person became a refugee;

(ii) the person is a family member of that other person at the time the person made the claim for a youth allowance or, if that other person has died, the person was a family member of that other person immediately before that other person died …

The matter of contention in Ms Kamalathevan’s case is whether she was a family member of a refugee at the relevant points in time and therefore is not subject to a NARWP. In relation to this issue, paragraph 549D(8)(b) of the Act states that “family member” has the meaning given by subsection 7(6D), which relevantly states:
"family member", in relation to a person, means:
(a) a partner of the person; or
(b) a dependent child of the person; or

(c) another person who, in the opinion of the Secretary, should be treated for the purposes of this definition as a person described in paragraph (a) or (b).

Paragraph 549(8)(c) of the Act states that “refugee” has the meaning given by subsection 7(6B). Under this latter subsection, a person is a refugee if they are the holder of a permanent protection visa – see subparagraph 7(6B)(c)(i) of the Act.

Does a NARWP apply to Ms Kamalathevan?

The relevant factual background is set out in written submissions provided by Mr Golab prior to the hearing, as well as in written statements to the Tribunal made by Ms Kamalathevan and her brother, [Mr A]. The salient facts can be summarised as follows.
Ms Kamalathevan was born in Afghanistan in 2002 and is one of [Number] siblings. After her father was killed by the Taliban in around 2005, Ms Kamalathevan and her family (which included her mother, grandmother, [Mr A] and other siblings) moved around Afghanistan before fleeing to Pakistan in 2010. [Mr A] sought refuge in Australia in 2010 or 2011 and was in immigration detention until he was granted a Subclass 866 visa – a permanent protection visa – on 2 July 2012. He was granted Centrelink payments soon afterwards and began sending money back to his family in Pakistan. In 2015 Ms Kamalathevan’s mother was murdered on a visit to Afghanistan, leaving Ms Kamalathevan an orphan at the age of 13. By this time, her sisters had married and had moved away; Ms Kamalathevan was now in the care of her grandmother and they were both financially reliant on the money sent by [Mr A]. After prematurely ceasing the equivalent of secondary studies, Ms Kamalathevan worked for a short time as [an occupation 1] but she and her grandmother remained financially reliant on [Mr A]. In 2018 [Mr A] applied for an orphan visa for Ms Kamalathevan so that she could come to Australia. This visa was ultimately granted on 28 February 2023. In the meantime, Ms Kamalathevan’s grandmother died in 2020 or 2021. Since arriving in Australia on 12 April 2023, Ms Kamalathevan has lived with [Mr A] and his wife and child. She has enrolled in various full-time courses and, now aged 22, remains wholly reliant on her brother for financial support.
Ms Kamalathevan also gave oral evidence, telling the Tribunal that she had lived with her mother and grandmother after her brother went to Australia. Ms Kamalathevan said that there were limited options for women in Pakistan but her mother supported the family by doing some sewing, tailoring and domestic work. Her brother did not have any money when he was in immigration detention in Australia but started sending money back to Pakistan once he was released and was working. He sent this money both before and after her mother’s death. When asked by the Tribunal at what point she regarded her brother as being her parent, Ms Kamalathevan said that he took over a parental role upon their father’s death in 2005. From then on, her brother did the things that fathers were expected to do, including looking after the family and taking her to school. Although her mother was still alive, women’s opportunities were restricted. Subsequently, since Ms Kamalathevan has come to Australia, her brother has continued to take responsibility for her and has paid for all her expenses, including for food, travel and education costs.
In his written statement to the Tribunal, [Mr A] stated that he became responsible for everyone in the family after his father’s death in 2005 because he was the oldest son. He stated that the family moved around Afghanistan with the help of friends and smugglers but never felt safe from the Taliban. In 2010 [Mr A] migrated on his own to Quetta in Pakistan before being joined by his family. As it was hard to find any paid work or opportunities in Quetta, he decided to join some people that he had met and travelled to Australia. He stated that he did not really have a plan on how he was going to immigrate, or about his future, but he just knew that he wanted to go somewhere safe. After being released from immigration detention and being granted a protection visa in 2012, he decided to settle in Sydney. After applying for Centrelink payments, his first priority was to learn English. He studied for three years then began looking for work. He ultimately became [an occupation 2], a job that he still holds. With regard to the financial support that he provided to his family in Pakistan, [Mr A] stated as follows:
The situation for my family in Quetta was still very difficult, and I started sending them money as soon as I started receiving Centrelink payments. I would call them often to ask about them, and when they needed money, I would try my best to get it to them.
None of my family members had official documentation in Pakistan, so it was impossible to send money to them through money transfer services. Instead, I had to find people in the community who were travelling and arrange for them to pass the money along.
I remember that [the applicant] would ask for new clothes and things when she was young. I felt there was a moral and cultural obligation for me to support my sister. If I didn’t step up, there was no one else that she could turn to for support.
Although [Mr A] had wanted to bring all his sisters to Australia, he prioritised Ms Kamalathevan’s visa application as she was under the age of 18. Since her arrival in Australia, Ms Kamalathevan has lived with him and he is solely responsible for all of her expenses.
In his written submissions to the Tribunal, Mr Golab contended that a NARWP does not apply to Ms Kamalathevan and that she was eligible for youth allowance at the date of both of her claims. In particular, Mr Golab submitted that Ms Kamalathevan was a family member of a refugee and therefore was not subject to a NARWP by virtue of subsection 549D(7) of the Act. Under subsection 7(6D), a decision-maker has the discretion to treat a person as a dependent child of another person. As found in Re Williams and Secretary, DSS [2015] AATA 262 (Williams), the relevant relationship must be analogous to that of a parent and dependent child. This was the situation with Ms Kamalathevan and her brother, [Mr A]. Ms Kamalathevan is an orphan with no independent means, limited English and limited employment history. [Mr A] has maintained an unbroken commitment to Ms Kamalathevan, both in terms of financially supporting her and bringing her to Australia, and she has been entirely dependent on his support since the death of her parents. Since arriving in Australia, Ms Kamalathevan has also relied substantially on [Mr A] to provide her with shelter, food, clothing and to meet her day-to-day living expenses. Particularly where departmental policy guidelines state that an exemption from the NARWP can apply if a child is orphaned and is under the care of a sibling who is a refugee, the discretion in subsection 7(6D) of the Act should be exercised in Ms Kamalathevan’s favour. Such an outcome would also be consistent with the purpose and objects of the NARWP given that parliament has acknowledged that these waiting periods should not apply to refugees and their families. Mr Golab also contended that there was nothing in the Act that precluded Ms Kamalathevan from being regarded as a dependent child at the age of 22.
With regard to the rejection of the first youth allowance claim, Mr Golab submitted that the authorised review officer had incorrectly concluded that they were unable to review the decision because of the delay in the request for an application for a review. While acknowledging that the social security legislation limited the date from which youth allowance could be granted where an application for review was made more than 13 weeks after a rejection decision, Mr Golab contended that this did not constrain the authorised review officer – or, by implication, the Tribunal – from reviewing the decision to reject Ms Kamalathevan’s first youth allowance claim.
Having considered Mr Golab’s submissions, the Tribunal agrees that the rejection of both youth allowance claims can be reviewed and that the matter at the heart of both of Ms Kamalathevan’s applications is whether she is exempt from a NARWP by virtue of subsection 549D(7) of the Act. To be exempt, Ms Kamalathevan needs to be a family member of her brother, [Mr A], who is the holder of a permanent protection visa and is thus a refugee as defined in subsection 7(6B) of the Act. Although Ms Kamalathevan is not a child of her brother, the Tribunal has the discretion to treat her as his dependent child under subsection 7(6D) of the Act. As observed by the AAT in Williams, it is not enough for there to be a family relationship between parties for this discretion to be exercised; the relationship must be analogous to one where a person is another person’s dependent child. In this regard, the AAT observed in Williams that a common feature of such a relationship is the duty that the other person owes to the child, an example being where a person stands in the role of parent, even if not the parent in fact.
As cited by Mr Golab, departmental operational guidelines acknowledge that the discretion in subsection 7(6D) of the Act may be exercised in situations similar to those of Ms Kamalathevan, albeit at a time when the person is an orphan. In particular, guidelines headed “Newly Arrived Resident’s Waiting Period (NARWP) and Qualifying Residence Exemptions 005-02020020” relevantly state:
Treated like a partner or dependent child
There are very limited circumstances that would meet this exemption reason. If the person wishes to be assessed as being ‘like’ a child of a refugee they would generally need to be a full time student under 22 years of age. An exemption could apply where a child is orphaned and under the care of a sibling or other family member carer who is a refugee.
The Tribunal notes that Ms Kamalathevan was under 22 years of age and an orphan when she first claimed youth allowance in April 2023. She has been a full-time student since that time and has been living with, and remains financially dependent upon, her brother [Mr A]. He is 11 years older than Ms Kamalathevan and facilitated her migration to Australia. He is also the only member of her family who is in a position to provide her with the care and assistance she needs as a young person whose parents are deceased. In such circumstances, the Tribunal finds that the relationship between [Mr A] and Ms Kamalathevan is analogous to that of a parent and a dependent child.
While the Tribunal is thus satisfied that Ms Kamalathevan is able to be treated as her brother’s dependent child by virtue of subsection 7(6B) of the Act, it does not necessarily follow that she is exempt from a NARWP under subsection 549D(7). As discussed at the hearing, subparagraph 549D(7)(b)(i) of the Act also requires Ms Kamalathevan to be “a family member of another person at the time the other person became a refugee”. As [Mr A] was granted his permanent protection visa on 2 July 2012, the Tribunal needs to be satisfied that Ms Kamalathevan was his dependent child on that particular date.
When asked for submissions on this issue at the hearing, Mr Golab acknowledged that [Mr A] had been in immigration detention, and was without an income, when his permanent protection visa was granted in 2012. However, as soon as he was released from detention and had the means to support the family, he sent money back to Pakistan. Mr Golab also contended that [Mr A] was always intending to support Ms Kamalathevan and his family and that there were moral and cultural obligations for him to do so. Furthermore, [Mr A] had previously been acting in the place of Ms Kamalathevan’s parent and had come to Australia to improve the position of her and her family.
In determining whether Ms Kamalathevan was a dependent child of her brother as at 2 July 2012, the Tribunal notes her statement at the hearing that she regarded [Mr A] as being her parent since the time of their father’s death given that he had taken over roles previously performed by their father. In his written statement to the Tribunal, [Mr A] likewise referred to his feeling of responsibility for the family as the eldest son. At the same time, the Tribunal is mindful that Ms Kamalathevan was not an orphan in 2012 and that she was living with her mother and other family members. In her evidence to the Tribunal, Ms Kamalathevan indicated that her mother was supporting her and her family at that time with what work that she was able to obtain. Her brother, on the other hand, was 21 years old and had been in immigration detention in Australia for an extended period. He had no money or income of his own and was not in any position to support the family, including Ms Kamalathevan. His written statement to the Tribunal also suggests that he had been unable to support the family previously when in Pakistan and that he had decided to travel to Australia on his own, without any concrete plans for himself or his family. Although he was ultimately able to provide considerable financial assistance and support to Ms Kamalathevan, this occurred after his permanent visa was granted.
In light of such matters, the Tribunal is not satisfied that Ms Kamalathevan – who was still being cared for and supported by her birth mother – should be treated as a dependent child of her brother in Australia when he was granted a permanent protection visa on 2 July 2012. Accordingly, the Tribunal finds that subparagraph 549D(7)(b)(i) of the Act is not satisfied and that Ms Kamalathevan is not exempt from a NARWP as the dependent child of a refugee.
As there is no suggestion that Ms Kamalathevan is exempt on any other grounds, the Tribunal concludes that a NARWP applied to her when she claimed youth allowance on 17 April 2023 and 20 June 2024. It follows that youth allowance was not payable to Ms Kamalathevan as at those dates and that Centrelink’s decisions to reject the claims were correct.
On a final point, the Tribunal observes that the 104 weeks that Ms Kamalathevan needs to be in Australia before youth allowance becomes payable to her will shortly come to an end. Once this period expires, she should lodge a new claim to test her current eligibility.

DECISION

The Tribunal affirms the decisions under review.

Date of hearing:	Friday 14 February 2025
Representative for the Applicant:	Mr Julius Golab, Welfare Rights Centre Inc