Kavanagh and Secretary, Department of Social Services (Social security) - [2025] ARTA 496

Kavanagh and Secretary, Department of Social Services (Social security) [2025] ARTA 496 (7 March 2025)

Applicant: Ms Kavanagh

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/M192066

Tribunal: General Member A Shelley

Place: Canberra

Date: 7 March 2025

Decision: The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant has served a newly arrived resident’s waiting period.

CATCHWORDS

SOCIAL SECURITY – parenting payment – newly arrived resident’s waiting period – became single parent due to domestic violence, and not granted permanent visa as member of family unit – granted visa after ministerial consideration – ministerial decision ‘set aside (however described)’ original decision and visa deemed to have been granted on day of initial decision – child an Australian citizen – decision under review set aside and remitted

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 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This is an application by Ms Kavanagh for the review of a decision made by Services Australia (Centrelink) to reject a claim for parenting payment (single) because she had not served a newly arrived resident’s waiting period.
Ms Kavanagh, who is a single parent to one child (born 2011) claimed parenting payment on 24 October 2024.
On or about 26 October 2024 the claim was rejected.[1] Ms Kavanagh sought internal review of the decision on 29 October 2024.
[1] There is no letter in the hearing papers recording that decision – in fact there is an erroneously generated letter purporting to accept the claim – but nothing turns on it.
On 30 October 2024, Centrelink’s authorised review officer (ARO) affirmed the decision to reject the claim, finding that Ms Kavanagh was subject to, and could not be exempted from, a newly arrived resident’s waiting period.
On 15 November 2024, Ms Kavanagh sought review by the Tribunal and the matter proceeded to a hearing on 4 March 2025. I had before me the hearing papers, numbered 1 to 173.

CONSIDERATION

The issue in this matter is whether Ms Kavanagh can receive parenting payment or whether she is precluded from receiving parenting payment because of the newly arrived resident’s waiting period.
The legislative provisions relevant to that issue are set out in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
I have set out the legislative framework before coming to the facts of Ms Kavanagh’s claim.

The legislative framework

Section 37 of the Administration Act provides that for parenting payment to be granted, Ms Kavanagh must qualify for parenting payment and parenting payment must be payable, or payable but for the imposition of a waiting period.
Section 500 of the Act sets out the general qualification criteria for parenting payment. A person must have at least one ‘PP child’, be an Australian resident and – if not a member of a couple and the youngest child is over 6 years of age – satisfy employment pathway plan requirements.
Section 500D of the Act defines PP child, for a person who is not a member of a couple, as a child who has not turned 14 and for whom the person is the principal carer.
Under section 7 of the Act, to be an Australian resident, the person must reside in Australia and be either an Australian citizen or the holder of a permanent visa (or protected special category visa, which does not arise here).
Turning to payability, even if a person is qualified for parenting payment, a waiting period may apply.
Significantly, section 500X of the Act provides that – subject to some exceptions – a person who has not been an Australian resident and in Australia for a period of, or periods totalling, 208 weeks is subject to a newly arrived resident’s waiting period.
Section 500Y of the Act provides that the period starts on the day the person first became an Australian resident, as defined above.
Subsection 7(4B), though, says:
For the purposes of a newly arrived resident’s waiting period, the day on which a permanent visa is granted to a person or a person becomes the holder of a permanent visa is: ...
(b) if:
(i)an initial decision maker decides not to grant a visa to the person; and
(ii)on a review of the decision referred to in subparagraph (i), that decision is set aside (however described) and a visa is granted to the person;
the day on which the initial decision maker decided not to grant the visa to the person.
The exceptions, which are listed in subsections 500X(2) to (4), are quite narrow. Unless a person is an Australian citizen or a current or former refugee (or family member of a refugee) – and Ms Kavanagh is none of those things – the only exception is that the person:
· is the principal carer of one or more children,
· is not a member of a couple, and
· was not a ‘lone parent’ at the start of their current period as an Australian resident, where section 23 of the Act provides that a lone parent has a dependent child and is not a member of a couple.
Sections 500WA and 500WB provide that a person may also be subject to an ordinary waiting period of 7 days unless they were receiving an income support payment in the 13 weeks before the start day for the claim or if experiencing a ‘personal financial crisis’ (defined under section 19DA).
Whether parenting payment is payable also depends on the person’s income and assets. It is not necessary to set out the provisions relevant to that assessment.

Is Ms Kavanagh precluded from receiving parenting payment?

With the benefit of that context, I turn to the facts of Ms Kavanagh’s case.
Ms Kavanagh first arrived in Australia, on a temporary student visa, in 2009.[2] She married in 2010 and her son was born in Australia in 2011.[3] She separated from her first husband in 2012.
[2] Page 126 of the hearing papers.
[3] Page 58 of the hearing papers.
In 2018 she re-married. The same year she was a secondary applicant on her then husband’s application for a permanent visa (subclass 186, which requires employer sponsorship). She separated in 2019, though, in the context of domestic violence and ultimately divorced in 2021.
On 24 September 2019 her application for visa subclass 186 was rejected on the basis that she was not a member of the family unit of the sponsored person at the time of the decision. In 2022, the Tribunal’s predecessor, the Administrative Appeals Tribunal (AAT), affirmed the decision to reject the visa application but referred the matter to the responsible Minister to consider using his discretion to intervene and substitute a favourable decision.[4]
[4] Page 81 of the hearing papers.
Section 351 of the Migration Act 1958 relevantly provided:
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
The Minister did so, granting Ms Kavanagh a visa (subclass 151) from 25 June 2024.[5] That was Ms Kavanagh’s first permanent visa.
[5] Page 74 of the hearing papers.
Ms Kavanagh has not left Australia since 2013.[6]
[6] Page 116 of the hearing papers.
Ms Kavanagh provided a detailed letter to the Tribunal[7] and elaborated on her case at hearing. She says:
· The ARO did not have sufficient regard to the fact that Ms Kavanagh became a single parent due to domestic violence. The Act, she submits, provides a number of exemptions for claimants who have experienced domestic violence causing hardship. It is relevant that she had to separate from her husband and that doing so led to her failure, initially, to be granted a permanent visa.
· Similarly, the ARO did not have significant regard to Ms Kavanagh and her son’s health conditions, financial hardship and risk of homelessness, in considering whether an exemption to the newly arrived resident’s waiting period could apply. Again, she submits, the Act provides a number of exceptions for financial hardship.
· Her circumstances align with the intended exceptions to the newly arrived resident’s waiting period, and denying her claim is inconsistent with the purpose of the exceptions, which in Ms Kavanagh’s submission are to prevent vulnerable individuals from facing extreme deprivation or insecurity.
· Her son is an Australian citizen and is greatly affected by Ms Kavanagh’s circumstances. Because Australia is a party to the United Nations Convention on the Rights of the Child, any ambiguity in the legislation should be construed in a way that gives primary consideration to her son’s best interests.
[7] Pages 44 to 48 of the hearing papers.
In relation to the qualification requirements, at the time she made the claim Ms Kavanagh was an Australian resident (in Australia and holding a permanent visa) who was the primary carer to a 13-year-old. Because of the narrow basis on which the claim was rejected, it is unclear whether Ms Kavanagh would meet employment plan pathway requirements and (for reasons that follow) Centrelink will need to determine that question on remittal.
I come to payability and the critical issue of whether a newly arrived resident’s waiting period applies. At the point of making the claim, I find Ms Kavanagh was not subject to the newly arrived resident’s waiting period for parenting payment for the following reasons:
·      Paragraph 7(4B)(b) will apply if an initial decision-maker decided not to grant a visa to a person, and on review of that decision, the decision is ‘set aside (however described)’ and a permanent visa granted to the person.
· The Minister’s power in section 351 of the Migration Act 1958 is to substitute for a decision of the AAT (and now for this Tribunal) a decision more favourable to the applicant, whether or not such decision was within the power of the AAT. The Minister substituted a decision granting a permanent visa for a decision rejecting a different class of permanent visa.
· That is a grant of a visa ‘on review’. Consideration by the Minister is not available as a right of review and is neither merits review by a tribunal nor judicial review by a court. Nonetheless, I see no compelling reason why ‘on review’ should attract a narrow, technical meaning excluding a discretionary consideration by the Minister. That is particularly so where the exercise of power under section 351 is not separate to the review process available to a person after a decision‑maker decides not to grant a person a visa – the Minister can exercise the discretion only after a person has applied for review and where the Tribunal has first made a substantive decision.[8]
·      The effect of the Minister substituting a decision for the AAT’s decision was to ‘set aside’ the original decision to reject the claim. The words ‘however described’ are sufficiently broad to encompass a favourable decision by the Minister to ‘substitute’ one decision for another. There is also nothing in the wording of subsection 7(4B) that indicates the visa that has been granted is to be of the same type as the visa that has been refused, merely that it must be a permanent visa so as to make the recipient a ‘resident’ for the purposes of the social security law.
·      The effect of subsection 7(4B) is that the Minister’s decision to substitute the grant of a visa means that Ms Kavanagh is taken (for the purposes of the newly arrived resident’s waiting period only) to have been the holder of a permanent visa since 24 September 2019, the date of the original decision to not grant a permanent visa.
·      Ms Kavanagh has not left Australia since that date.
·      She has therefore been a resident (again, for the purposes of the waiting period only) for more than 204 weeks, as at the date of claim. She has served a newly arrived resident’s waiting period.
[8] The purpose of subsection 7(4B), as set out in the supplementary explanatory memorandum to the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Bill 1996, is ‘to provide that a newly arrived resident’s waiting period for a person who is granted a permanent visa in Australia after having appealed an initial decision not to grant that visa, is to commence from the date of the initial decision’. The provision was said to apply if an original decision was set aside ‘for example, on review’. In short, the emphasis is on a decision having been overturned, and not how or why it was overturned.
I do not need to determine whether an exception to the newly arrived resident’s waiting period applies.
Because Ms Kavanagh’s claim was rejected by reference to that single issue, the hearing papers do not contain the sort of financial information that would be necessary to determine if parenting payment is otherwise payable or at what rate. Centrelink will need to redetermine the claim in view of my finding that the newly arrived resident’s waiting period has been served.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant has served a newly arrived resident’s waiting period.

Date(s) of hearing:

Tuesday, 4 March 2025