Khanna and Secretary, Department of Social Services (Social services second review)
[2021] AATA 3799
•18 October 2021
Khanna and Secretary, Department of Social Services (Social services second review) [2021] AATA 3799 (18 October 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3180
Re:Kanta Khanna
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:18 October 2021
Place:Sydney
The decision under review is affirmed.
.....................................[sgd]...................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – whether applicant qualified for payment of age pension – whether applicant is of pensionable age – whether applicant meets residence requirements – whether applicant exempt from residence requirements – alternatively, whether applicant eligible under an International Agreement – decision affirmed
LEGISLATION
Social Security Act 1995 (Cth) ss 7 and 43
Social Security (Administration) Act 1999 (Cth) sch 2
Social Security (International Agreements) Act 1999 (Cth) sch 31
CASES
Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75
Dhirubhai Desai and the Secretary to the Department of Social Security [1986] AATA 64
Hafza v Director-General of Social Security [1985] FCA 164
Secretary, Department of Families, Housing and, Community Services and Indigenous Affairs v Bacon [2006] FCA 773
SECONDARY MATERIALS
Department of Social Services, Social Security Guide
Department of Social Services, Current International Social Security Agreements:
Employees’ Pension Scheme (EPS): Eligibility, Calculation & Formula, Eligibility Criteria:
REASONS FOR DECISION
Chris Puplick AM, Senior Member
18 October 2021
THE APPLICATION
On 16 May 2021, Mrs Kanta Khanna (the Applicant) applied to this Tribunal to review a decision made by the Social Services and Child Support Division of the Tribunal (AAT1) made on 15 April 2021. That decision was to uphold a finding by an Authorised Review Officer (ARO) of the Secretary, Department of Social Services (the Respondent) made on 29 January 2021 refusing the Applicant’s application for payment of the age pension.
The application was heard by this Tribunal on 5 October 2021 using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. The Applicant was supported in the hearing by her son and assisted by the provision of an interpreter in the Hindi language.
THE APPLICANT
The Applicant was born in 1945 in India and is an Indian citizen. She is married and has a son and his family who live in Australia and a daughter and her family who live in Canada. She had several family members residing in India but the last of her immediate family there passed away in January 2020.
The Applicant first arrived in Australia in November 2010 as the holder of a Contributory Parent visa (subclass 143) which had been granted on 22 September 2010. This visa is granted to a parent of a settled Australian citizen or permanent resident and allows the visa-holder to enter and remain in Australia. On 21 March 2016 the Applicant was granted a Return Resident visa (subclass 155) which allows her to leave and re-enter Australia on a regular basis.
On arrival the Applicant was accompanied by her husband Bodhraj Khanna, (born 1942) and the couple have remained together since that date.
Between November 2010 and February 2020, the Applicant and her husband made numerous trips from Australia to India and Canada to see or support various members of her family.
The original application for age pension was made on 23 November 2020. It was subject to several reviews by the Respondent before a final ARO decision of refusal was made on 29 January 2021.
THE BASIS OF THE REFUSAL DECISION
The Respondent refused the application for age pension on the grounds that the Applicant was not residentially qualified to receive it.
QUALIFICATIONS
All social security payments made under the Social Security Act 1991 (Cth) (the Act) are made subject to the recipient being qualified to receive them. The qualifications for any payment are set out in detail in the Act or in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The relevant qualifications for receipt of the age pension are set out in section 43 of the Act:
43 Qualification for age pension
(1) A person is qualified for age pension if the person has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for age pension;
…
(1A) A woman is qualified for age pension if:
(a) the woman has reached pension age; and
(b) the woman’s partner has died; and
The term “qualifying Australian residence” is defined in subsection 7(5) of the Act:
7 Australian residence definitions
(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.
The term “Australian resident” is itself defined in subsection 7(2):
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
The Applicant meets the requirements of subsection 7(2) because she “resides in Australia” and has been a “permanent resident” since she was granted such visa status on 22 September 2010 and first arrived here on 14 November 2010.
The issue for the Tribunal is whether or not she meets the requirements of subsection 7(5) and thus the requirements of section 43.
THE APPLICANT’S TRAVEL RECORD
There are some discrepancies in the material provided by the Applicant regarding her travel details and those held by the Australian Government.
Applicant’s records[1]
[1] Applicant’s Statements dated 15 May 2021 and 2 August 2021.
Arrival
Departure
Days
14 November 2010
15 March 2011
121
23 March 2013
14 November 2014
561
14 August 2015
4 August 2016
356
1 December 2016
20 January 2018
415
22 November 2018
23 November 2019
366
29 February 2020
In Australia as at 1 August 2021
517[2]
TOTAL
2337
(6.4 years)
[2] The Applicant made a calculation based on concluding date of 1 August 2021: Applicant’s Statement dated 2 August 2021.
Departmental records[3]
[3] Respondent’s Statement of Facts, Issues and Contentions at [108].
Arrival in Australia
End date
Time spent
14 November 2010
14 March 2011
4 months and 1 day
2 March 2013
14 September 2014
1 year, 6 months and 13 days
15 August 2015
20 January 2018
2 years, 5 months and 6 days
23 November 2018
22 February 2021[4]
2 years and 3 months
TOTAL
6 years, 6 months and 20 days
[4] The date of the expiry of the qualifying period – see below.
In circumstances where there is a disagreement, albeit in this instance, a minor one and not one of moment, the Tribunal accepts the record as presented in the Department’s “Country of Residence (CRES)” record.[5]
[5] Tribunal documents (T-documents) at 198-202.
In calculating the required residency period, the relevant time is to be taken as being covered by the period from the date of the application for benefit (23 November 2020) and for 13 weeks thereafter (i.e. until 22 February 2021).[6]
[6] This is as provided by clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth).
The basis of the Respondent’s calculation takes into account two periods (totalling 7 months, 3 days) during which the Applicant was physically absent from Australia but which the Respondent credits to her, on compassionate grounds, as constituting qualifying Australian residence. These periods are:
·3 August 2016 – 1 December 2016 (3 months, 29 days): when the Applicant travelled to India to be with seriously ill members of her immediate family, and
·24 November 2019 – 29 February 2020 (3 months, 5 days): when the Applicant returned to India where a close relative of hers had a heart attack and major surgery but subsequently died.[7]
[7] Respondent’s Statement of Facts, Issues and Contentions at 110-112.
The decision by the Respondent to treat these periods as counting towards, and not against, residency is an exercise of discretion on the part of the Respondent. Section 3.1.1.10 of the Social Security Guide contemplates the use of such discretion when it provides that:
“1. Frequency & duration of the person’s travel outside Australia
A person does not need to be continuously present in a country in order to be residing there. A person holidaying or working temporarily overseas does not necessarily cease to reside in Australia while they are away.”
There is no definition in the Guide as to how long such a period of absence might be for the discretion to be exercised, although judicially it has been suggested that any definition of “temporary” absence must be:
relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.[8]
[8] Hafza v Director-General of Social Security [1985] FCA 164 at [17].
The exercise of the discretion also requires consideration of the extent to which:
a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home.[9]
[9] Secretary, Department of Families, Housing and Community Services and Indigenous Affairs v Bacon [2006] FCA 773 at [9].
The Tribunal accepts that the exercise of this discretion by the Respondent in relation to these absences from Australia was entirely correct.
There are three prolonged periods in which the Applicant was physically absent from Australia following her initial arrival. It is not in dispute between the parties that these periods were:
·15 March 2011 – 1 March 2013: when the Applicant was resident in either Canada (to 12 August 2011) or India, occasioned by her need to be with her daughter in Toronto and then family members in India in support of her daughter during a period in which she was involved in the process of divorce and attempted reconciliation;
·15 September 2014 – 14 August 2015: when the Applicant was in India to support her husband, who was seeking lengthy and complex dental treatment;
·21 January 2018 – 22 November 2018: when the Applicant returned to India because of the death of her brother and while there suffered a major fall which necessitated a prolonged period of rest and occasioned an inability to travel back to Australia for some 8 months.[10]
[10] Applicant’s Statement dated 15 May 2021.
The Applicant was clearly not resident in Australia during these periods, nor was she resident between 22 September 2009 when her visa was granted and 14 November 2010 when she first arrived in Australia.
The question then arises as to whether the same discretion that was exercised in relation to the two shorter absences should be extended to all or any of these much more prolonged absences.
In considering such matters reference must be had to the provisions of subsection 7(3) of the Act which provides:
(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
The Tribunal does not regard it as necessary to examine each of these criteria with reference to each of the three periods under consideration as the same conclusion arises in relation to each:
·Accommodation: While in Australia the Applicant has resided with members of her family, namely her son and his family members. In Canada the Applicant lived in the home of her daughter. In India she lived in the homes of her brother or her sister-in-law;
·Family relationships: At all times the Applicant has had her son and his family in Australia and her daughter and her family in Canada. At the time of her initial arrival in Australia she had family members in India, however, sadly her brother died in October 2017, her sister also passed away that year and her sister-in-law died in January 2020.
·Employment, financial ties and assets: The Applicant told the Tribunal that she and her husband had expended $80,000 on various costs to secure their permanent residency in Australia and that while, initially, she had had some small savings she had transferred all her assets to an Australian bank account, the savings were now much depleted. When travelling overseas she has relied on financial support from members of her family for both expenses and for the provision of accommodation.
·Frequency of travel: This is a matter of record as outlined above.
·Other relevant matters: In this respect the Tribunal accepts that the evidence is clear that at all material times when the Applicant left Australia after March 2011 it was her intention to return to Australia at some time to resume residing here on a permanent basis with her son and his family. However, it is also true that on all relevant occasions the Applicant left Australia without concrete plans or arrangements regarding a fixed or established return date:
oon her trip to Canada she had a six month Canadian residency permit but no idea how long it would take to resolve her daughter’s marital issues and she then decided after her daughter’s formal divorce (May 2012) to travel to India to see if a future reconciliation was possible;
oon her trip to India in relation to securing dental treatment for her husband she had no treatment arrangements in place before her departure and some time was taken initially to find a dentist and then change those arrangements. The extensive treatment necessitated some further stay in India for recuperative purposes; and
oon her trip to India following her brother’s death she was prevented from an earlier return to Australia as a result of a fall in March 2018 which resulted in a fracture to her lumbar spine which required further treatment until November 2018.
The Tribunal is also conscious of the cultural norms and circumstances which should be taken into account in dealing with the Applicant and which do not appear to be appreciated fully by the Respondent.[11] In particular:
·the idea that aged parents in Indian communities are more likely to reside with their sons than their daughters given that daughters are taken to have become members of their husband’s families;
·the inappropriateness of assuming that aged parents residing with their children should be expected to pay rent; and
·the idea that a wife should be expected to travel with her husband when he goes overseas for medical treatment and then be expected to provide him with care and support thereafter.
[11] Respondent’s SFIC at [131].
The Tribunal also accepts that the decision to travel to India to seek dental treatment was an entirely rational one. The evidence shows that the nature of the treatment was genuinely extensive and the cost of such procedures in Australia would have been prohibitive.[12]
[12] T-documents at 151-152.
There is a case which was decided by a three-member panel of this Tribunal in 1986 which contains many relevant parallels with this application. The Respondent summarises the issues in Dhirubhai Desai[13] in its SFIC thus:
“The Tribunal in that case, consisting of three members, found against the Applicant who was born in India and claimed AP, since he was not residentially qualified for such payment under legislation prior to the current Act in force. Mr Desal[sic] and his partner travelled many times between the USA, South Africa and India where they stayed with their children and immediate family. In the USA, they were required to deal with marriage problems involving their younger son while their daughter who was residing in South Africa had been diagnosed with breast cancer. Further, Mr Desai travelled to India at the request of his eldest brother to assist in some litigation concerning the family’s ancestral lands and to resolve property matters in regard to their former family home.”[14]
[13] Dhirubhai Desai and the Secretary to the Department of Social Security [1986] AATA 64.
[14] Respondent’s SFIC at [124].
In that case the Tribunal stated:
18…The success or failure of an applicant in proceedings such as this depends on whether he can show that he acquired an Australian domicile when he first arrived here. Thus it is not surprising that applicants usually assert that their intention was to reside here indefinitely from the time of first arrival.
19. We must however pay attention not only to the applicant's statements but also to his actions in deciding whether we are satisfied that Mr Desai acquired a domicile of choice in Australia when he arrived here in September 1974.
In that matter, the Tribunal drew particular attention to the difficulty of defining exactly what constitutes “domicile” (at [29]) but went on to conclude (at [12]) that although the applicant had been in Australia over a period of 12 years:
at the time Mr Desai claimed age pension he had lived in Australia for only 2 years and 4 months since his first arrival here in September 1974. We are satisfied that such a pattern of residence can not be described as being "continuously resident" in Australia if the words "continuously resident" are given their usual meaning.
Returning to the three periods that are in issue, the Tribunal notes that even if all three were granted the same discretionary inclusion in the period of Australian residency of the Applicant, that would still not bring her to a position of having satisfied the cumulative ten year requirement with a five year continuous period.
Nevertheless, for the sake of completeness, the Tribunal would include the ten-month period from 20 January 2018 to 21 November 2018 as part of the Applicant’s residency period in Australia as provided under Instruction 3.1.1.10 of the Social Security Guide. Her reasons for travelling to India for family reasons following the death of her brother and her enforced stay there as a result of her fall (notwithstanding the Respondent’s rejection of the evidence in this matter)[15] is taken by the Tribunal to constitute genuine compassionate grounds and includes an element of force majeure[16] which should be accepted by it.
[15] Respondent’s SFIC at [133]-[135].
[16] Used here in its ordinary meaning to describe a superior or irresistible force outside a subject’s control rather than for its legal and contractual meaning.
In relation to the fall, the Tribunal accepts the evidence of Dr Gupta as to its occurrence and the immediate consequences.[17] The evidence at the hearing was to the effect that on return the Applicant undertook a CT scan of her spine and that her medical advice was that the only treatment recommended was rest and the use of analgesics.[18]
[17] T-documents at 153.
[18] Ibid at 134-136.
The Tribunal does not believe that the other two periods can be so classified. As the Respondent points out, the Applicant’s decision to travel to India after the finalisation of her daughter’s divorce in Canada and the extended stay covering the period of dental treatment are clearly matters where the Applicant was in a position to return to Australia at an earlier stage, but chose not to do so.
At the very best however, inclusion of the 10-month period as indicated above leaves the Applicant well short of the residency requirements of the Act.
IS THE APPLICANT QUALIFIED FOR THE AGE PENSION?
The key elements of qualification for the age pension, in relation to this Applicant are:
(a)the applicant is of pensionable age; and
(i)the applicant has “10 years qualifying Australian residence”; or
(ii)the Applicant is specifically exempt from this requirement; or
(b)in the alternate, the Applicant is eligible for the age pension under provisions of an International Agreement on social security matters to which Australia and the country of the Applicant’s citizenship (India) are party.
Is the Applicant of pensionable age?
Yes. Subsection 23(5C) of the Act provides that for a woman born between 1 July 1944 and 31 December 1945 the “pensionable age” is 63 years and 6 months. The Applicant was born in November 1945 (within that period) and submitted her claim on 23 November 2020 when she was 75 years of age.
Does the Applicant meet the residence requirements?
No. For the reasons stated above, the Tribunal finds that the Applicant does not have a qualifying period of ten years residency, either in one continuous period or in multiple periods with at least one five-year continuous period.
Is the Applicant exempt from the residential requirements?
No. Subsection 7(6) of the Act provides that:
(6) A person has a qualifying residence exemption for a social security pension (other than carer payment) or a social security benefit (other than youth allowance, austudy payment, jobseeker payment, special benefit or partner allowance) if, and only if, the person:
(a) resides in Australia; and
(b) is either:
(i) a refugee; or
(ii) a former refugee.
There is no suggestion that the Applicant is a refugee or former refugee. Her subclass 143 and 155 visas accord her permanent resident status and are in no way related to any claims of refugee status.
Is the Applicant eligible under an International Arrangement?
No. Australia and India are parties to an Agreement between Australia and the Republic of India on Social Security (the Agreement) which was signed in November 2014.[19] There are currently some 31 such Agreements in place:
“All these agreements are based on the concept of shared responsibility. Shared responsibility agreements are reciprocal. Partner countries under each agreement make concessions against their social security qualification rules so that people covered by the agreement may access payments for which they might otherwise fail to qualify. In this way, responsibility for social security is shared between the countries where a person has lived during their working years and the person is able to unlock potential entitlements. Generally, a pension from one country can be accessed in the second country, although the paying country maintains some discretion in the currency and delivery mechanisms used.
Under these agreements, Australia equates social insurance periods/residence in those countries with periods of Australian residence in order to meet the minimum qualifying periods for Australian pensions. The other countries generally count periods of Australian working life residence as periods of social insurance in order to meet their minimum qualifying periods for payment. Usually, each country will pay a part pension to a person who has lived in both countries.”[20]
[19] It became operational as of 1 January 2016.
[20] Department of Social Services, Current International Social Security Agreements:
The specific provisions of each International Agreement, especially the extent to which they modify the operation of any other social security provisions are brought into Australian domestic law with the incorporation of those provisions under the Social Security (International Agreements) Act 1999 (Cth). The Agreement with India is included as Schedule 31 to that Act. The provisions of an International Agreement override the provisions of the Social Security Act to the extent that there are any inconsistencies.[21]
[21] Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75.
The Agreement with India does introduce some modification of residential qualification requirements. Article 13 of the Agreement provides (emphasis added):
Article 13
Totalisation
1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
(a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the legislation of Australia for that benefit; and
(b) a period of Australian working life residence that is equal to or greater than the period identified in accordance with paragraph 4 of this Article for that person; and
(c) a period of insurance in the Employees' Pension Scheme,1995 of India accrued after the date of commencement of this Agreement;
then for the purposes of a claim for that Australian benefit, that period of insurance completed under the legislation of India shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia.
2. For the purposes of paragraph 1 of this Article, where a person:
(a) has been an Australian resident for a continuous period which is less than the minimum continuous period required by the legislation of Australia for entitlement of that person to a benefit; and
(b) has accumulated a period of insurance under the legislation of India, after this Agreement commences, in two or more separate periods that equals or exceeds in total the minimum period referred to in subparagraph (a);
then the total of the periods of insurance under the legislation of India shall be deemed to be one continuous period.
3. For the purposes of this Article, where a period by a person as an Australian resident and a period of insurance under the legislation of India coincide, the period of coincidence shall be taken into account once only by Australia as a period as an Australian resident.
4. The minimum period of Australian working life residence to be taken into account for the purposes of paragraph 1 of this Article shall be 12 months, of which at least 6 months must be continuous, providing that all such periods are accrued before the person reaches retirement age as specified in the Employees' Pension Scheme under the legislation of India.
The Employees’ Pension Scheme provides that eligibility criteria are as follows:[22]
“In order to be eligible for availing benefits under the Employees’ Pension Scheme (EPS), an individual has to fulfil the following criteria:
·He should be a member of EPFO
·He should have completed 10 years of service
·He has reached the age of 58
·He can also withdraw his EPS at a reduced rate from the age of 50 years
·He can also defer his pension for two years (up to 60 years of age) after which he will get a pension at an additional rate of 4% for each year.”
[22] Employees’ Pension Scheme (EPS): Eligibility, Calculation & Formula, Eligibility Criteria:
Relevantly, the Scheme establishes the pensionable age as 58 years and on that basis the Applicant is qualified for further consideration.
However, the Agreement clearly provides that there must be a “minimum period of working life residence” in Australia which shall be 12 months of which at least 6 months must be continuous (paragraph 13(4) of the Agreement) before the Applicant reached the age of 58 years.
It is then necessary to refer to paragraph 1(g) of the Agreement which provides that the:
“period of Australian working life residence” means a period defined as such in the legislation of Australia and accrued on or after 16 November 1995.
It is next necessary to consider the period between 16 November 1995 (the commencement date) and 14 November 2003 (the date the Applicant turned 58 years of age). In this period, the Applicant was not a permanent resident of Australia as her permanent residency was only granted on 22 September 2010, well after the date of her 58th birthday.
As such, the Applicant has no period of “working life residence” in Australia under the Agreement and hence any calculations in relation to her pension eligibility are unaffected by any of its provisions.
CONCLUSIONS
The Applicant is not qualified for the age pension as per the requirements of the Act.
It may not be of much comfort to the Applicant but the Tribunal notes that, with the inclusion of the 10 month period which it has discussed above, the Applicant is brought closer to a time when she will be able to satisfy both the 10 and 5 year requirements of the Act, at which stage she can make a further application for the age pension. The inclusion of that period would give a residential total of approximately 7.5 years, and a subsequent application may (depending on all the circumstances) include a five-year period as from the Applicant’s last return to Australia (23 November 2018).
The Tribunal recognises both the highly compromised state of the health of both the Applicant and her husband and sympathises with the obvious financial and emotional distress which this causes. It also appreciates the issues involved with her sense of dependency upon her son and his family.
The Tribunal is aware that the Applicant is now in receipt of Special Benefit, which is the appropriate benefit payment for her at this stage, although the rate of this is substantially less than that of the age pension. She also has access to both Medicare and the Low-Income Health Care Card, although these may not cover all of her medical expenses.
However, the personal financial or health circumstances of an applicant are not relevant matters in relation to eligibility for the age pension, although they might relate to other benefits.
The Tribunal must, of course, apply the law as it stands and where a person is not qualified for a benefit it simply cannot be granted to them.
DECISION
The decision under review is affirmed.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
........................................[sgd]................................
Associate
Dated: 18 October 2021
Date(s) of hearing: 5 October 2021 Applicant: In person Solicitors for the Respondent: Ms E Ulrick, Services Australia
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