Lal and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1700

Administrative Appeals Tribunal

WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1700

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1780 

GENERAL ADMINISTRATIVE DIVISION   )                  

RICHARD LAL

First Applicant

SYLVIA LAL

Second Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS.

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date of oral decision        23 August 2007

Date of written reasons   27 August 2007

PlaceSydney

Decision  For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the reviewable decision made by the Social Security Appeals Tribunal dated 19 April 2007.  This means that the applicants have not been successful in this matter.

.........................[sgd].....................

Senior Member, Mrs Josephine Kelly  

WRITTEN REASONS

1.At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Applicants requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicants and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – Age Pension – qualifying Australian residence not met – qualifying residence exemption does not apply - applicant’s do not qualify for age pension - decision under review is affirmed.     

LEGISLATION

Social Security Act 1991: sections 7, 43(1A)

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly     

1.      In my view the reviewable decision of Social Security Appeals Tribunal dated  19 April 2007 is correct. 

2.      Mr and Mrs Lal, who are the applicants in these proceedings, applied in 1997 for a particular class of parent visa.      

3.      At the time that Mr and Mrs Lal applied for their visas they were living in Fiji.  They were both in the order of 59 and 60 years of age and the type of visa applied for was a parent (class AX-migrant) (subclass 103).  There was no age requirement for that visa.  However, in the ensuing 10 years Mr and Mrs Lal both became of pensionable age and by the time they came to Australia in 2004 Mr Lal was 64 - 65 and Mrs Lal was around the same age.  What has happened in addition, is that, at the time the application was made, the assurance of support that was required for the particular class of visa was two years.  When I look at pages 8 and 9 of booklet 3, which is in evidence, I see that there are other categories of visa which are aged parent visas which have an assurance of support requirement of 10 years.

4. Unfortunately what has happened in this case is that Mr and Mrs Lal’s family and in particular, their son, Mr Adrian Lal, proceeded on the basis that the two year period represented the period during which his parents would be disqualified from receiving any social security benefit or pension. However, because of the change in circumstances when they actually received their visa and came to Australia, they sought the aged pension only to find that, as I find, they did not satisfy the 10 year qualifying Australian residence period under section 43(1)(a) of the Social Security Act 1991 (“the Act”) and they do not fall into any of the exemptions that apply. I refer in particular to section 7 of the Act.

5.      The consequence is that under the social security legislation I accept that they do not qualify for the aged pension.  However, the circumstances of the application being so long ago, and their age changing in that period to a situation where they fell into the hole of having to be qualified for 10 years, has meant that their family has found at the end of the day that they are not entitled to get their age pension for another eight years.  This has been very frustrating and annoying for the family.  I appreciate that it might be said against them that, “well, you should have gone to Centrelink and checked out exactly what your parents’ entitlements were”.  However, on the other hand, given the particular parent visa that was applied for, it is my view that the Department of Immigration should have in place administrative provisions, computer signalling or some device, that ensures that people who will find themselves in a situation where the qualifying period for pensions changes during the period between their application and the granting of the pension, but  the period of the assurance of support does not change to reflect that, should be clearly notified of that circumstance.

6.      That would be in my view fair to the applicants and to their families and would prevent what has occurred in this case where Mr and Mrs Lal have sold up their property in Fiji, come to Australia and found that, contrary to their expectation, they are unable to receive the pension.

7.      For those reasons, unfortunately I cannot assist the Lals and I have to affirm the decision under review.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: Ms P Nimmagadda

Associate

Date of hearing & oral decision      23 August 2007 

Date of written reasons                  27 August 2007

Solicitor for applicant      Self-represented

Solicitor for respondent                 Centrelink Legal Services