Kiourkenidis and Secretary, Department of Family and Community Services

[2005] AATA 102

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 102

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/70

GENERAL ADMINISTRATIVE DIVISION		)
Re		PARASKEVE KIOURKENIDIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date4 February 2005

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - age pension - widow pension - overseas residency - United States of America - Australia - Centrelink - decision - review - qualification period - SSAT.

Social Security Act 1991

Social Security (International Agreements) Act 1999 - Schedule 13: Agreement between Australia and United States of America

Guide to Social Security Law

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Re Santini and Secretary, Department of Family and Community Services (AATA 844, 26 September 2002)

REASONS FOR DECISION

4 February 2005 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      The decisions under review are decisions made by delegates of Centrelink, dated 28 November 2003 and 24 December 2003 respectively, to reject a claim for age pension and to reject a claim for widow B pension.

Issues

(a)Was Mrs Kiourkenidis qualified to receive age pension at the date of her claim and specifically did she have 10 years qualifying Australian residence?

(b)Was Mrs Kiourkenidis qualified to receive Australian widow B pension at the date of her claim and specifically was the claim made on or before 20 March 1997?

Standard of Proof

2.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Legislation

3.      The relevant legislation is the Social Security Act 1991 Sections 43, 7(1), 362 and 362A, and the Social Security (International Agreements) Act 1999, Schedule 13, Agreement between the United States of America and Australia.

Decision on the Papers

4.      The applicant, Paraskeve Kiourkenidis, resides in the United States and is unable to attend hearings in Australia.   She agreed in January 2005 to a decision on the papers.

Background

5.      Mrs Kiourkenidis resides in the USA and is 63 years old, having been born in Greece on 13 April 1941.  She has lived in America since 1963 and has nine quarters of coverage under United States law i.e. a period of 2 years and 3 months.  Mrs Kiourkenidis did not claim any Australian benefit prior to 2003, but says she resided in Australia in 1962 – 63, for a period of twelve months.

6.      The applicant advised Centrelink in August 2003 of her intention to claim an Australian benefit and an application for age pension was lodged within 14 days, hence the date of her claim was taken to be 4 August 2003.    This claim was rejected on 28 November 2003, on grounds she did not meet the residency requirements for an Australian age pension.

7.      On 15 December 2003 Mrs Kiourkenidis wrote to Centrelink and this was treated as a claim for widow pension.   A decision was made by a Centrelink officer on 24 December 2003, to reject the claim for widow pension on the grounds it was lodged after 20 March 1997.   The applicant then sought a review of these decisions on 13 January 2004.

8.      On 28 January 2004 the original decision-maker affirmed the decision and on 30 January 2004 an authorised review officer affirmed the decisions, noting that Mrs Kiourkenidis failed to meet residency requirements for age pension and the claim for widow B pension involved a change in legislation in March 1997, which prevented new claims after that date being accepted.

9.      Mrs Kiourkenidis’ sought further review by the Social Security Appeals Tribunal (SSAT) on 24 January 2004, but on 13 May 2004 the Tribunal further affirmed the decisions under review.   An application for review by the Administrative Appeals Tribunal (AAT) was lodged on 13 September 2004.

Analysis

10.     The Tribunal is required to conduct a de novo review, standing in the shoes of the original decision-maker, but considering all evidence anew, noting relevant legislation and any significant prior case determinations.

11.     As previously noted, the principal issues for the Tribunal to address are:

(a)Whether the applicant was qualified to receive age pension at the date of her claim and whether she met Australian residency requirements; and

(b)Whether she was qualified to receive an Australian widow pension at the date of her claim, given legislative amendments dated 20 March 1997.

12. Schedule 13 of the of Social Security (International Agreements) Act 1999, sets out provisions of the agreement on social security between Australia and the United States of America.    It provides for equal treatment of the citizens of both countries, in that any claim by an American citizen will be dealt with under Australian social security law as if the applicant was an Australian citizen.

13.     The Australian Social Security Act 1991 (“the 1991 Act”) has a number of specific provisions relating to applications for age pension and widows pension, see:

Section 43(1) - qualification for age pension

Section 7(1)        -    Australian residence definitions

Section 362(1) - widow B pension

Section 362A(1) - widow B pension not to be granted in certain cases.

14. Under s43(1) of the 1991 Act a person qualifies for Australian age pension if that person has 10 years qualifying residence in Australia. Mrs Kiourkenidis gave evidence to the SSAT that she lived in Australia for a maximum of 12 months, but provided no documentary evidence this was the case.

15.     Article 9 of the International Agreement with the United States permits an applicant for Australian benefits to count a US period of coverage as part of the residency requirement.   The applicant’s US coverage amounts to 2 years, 3 months, thus the total residence coverage for Australian benefits is only 3 years, 3 months, far less than the Australian residence requirement of 10 years.   In these circumstances she does not qualify for Australian age pension.

16.     The applicant sought to have her husband’s “US work contributions” and “Australian contributions” (unspecified) count towards her residency total, but there is no legislative provision for such action.   Section 7(5) of the 1991 Act makes it clear that an individual can only count residency elements that relate to them personally.   Mrs Kiourkenidis reached the age pension threshold in 2003, when her age was 62, but she was not in receipt of any other Australian social security benefit at the time.

17. Turning to the issue of widow B pension, it should be noted that the 1991 Act was amended in 1997, to provide that no new claim for widow pension could succeed unless the applicant was qualified within the meaning of sections 362 and 362A of the Act and had lodged an application prior to 20 March 1997. Mrs Kiourkenidis did not lodge her claim until 15 December 2003 and in any case does not meet the requirements of s362(1)(a)(i, ii or iiii) of the Act. In other words, her application for widow’s pension does not meet Australian statutory provisions. There is nothing in the International Agreement that affects these provisions.

In Summary

(a)the applicant fails to meet the residency requirement of 10 years and therefore her application for Australian age pension fails;

(b)her claim for widow B pension was lodged in December 2003, well after the cut off date of 20 March 1997, thus it too fails.

20.      Having examined all evidence anew, the Tribunal finds that the decisions made by Centrelink on 28 November 2002 and 24 December 2003 were lawful and the claims for age pension and widow B pension were appropriately rejected.

Decision

18.     The decisions under review are affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  Matter decided on the papers.
Date of Decision  4 February 2005