Lange and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 112
•13 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 112
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1615
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH JUNE LANGE Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date13 February 2008
PlaceHobart
Decision The decision under review is affirmed.
[Sgd: A F Cunningham]
Senior Member
CATCHWORDS
SOCIAL SECURITY - protected special category visa - applicant a New Zealand citizen - history of residency in Australia - applicant resident in Japan at time of application - failed to satisfy s7(2E) - decision under review affirmed
Administrative Appeals Tribunal Act 1975, section 35
Social Security Act 1991, section 7(2A), 7(2B), 7(2C), 7(2D), 7(2E)
Family and Community and Services Legislation Amendment (New Zealand Citizens) Act 2001
Re QX05/5 and Secretary, Department of Family and Community Services [2005] AATA 646
Re DEWR and Blakely [2007] AATA 1450
SDEWR and Rhodes [2007] AATA 1664
Re Anab Jama and S, DEWR [2005] AATA 1188
REASONS FOR DECISION
13 February 2008 Ms A F Cunningham (Senior Member) 1. The applicant seeks the review of a decision of the Social Security Appeals Tribunal dated 28 March 2007 which affirmed a decision made by Centrelink to reject her application for status as a protected special category visa holder (protected SCV holder). Ms Lange seeks a reconsideration of her application and contends that her circumstances justify her being granted a protected special category visa.
2. The hearing was conducted by way of telephone link to Ms Lange who currently resides in Japan. Ms Lange is a New Zealand citizen but has spent the last twenty years living in Japan with her husband.
3. At the commencement of the hearing Ms Lange sought "a confidentiality order" with respect to the evidence that she proposed to give regarding her family members and matters of expenditure. The application was opposed by Mr Sparkes who contended that the issues were not of a private nature and that it was in the interests of the public that the proceedings be heard in public.
4. Section 35 of the Administrative Appeals Tribunal Act 1975 provides that Tribunal hearings are to be heard in public except in special circumstances. Sub-section 2 provides:
"(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding".
5. The Tribunal accepted Mr Sparkes' submission that it is in the public interest that the proceedings be heard in public. Ms Lange failed to satisfy the Tribunal that the provisions of sub-section 2 were satisfied. There was nothing unusual about the evidence that she proposed to give nor could she advance any reason as to why any aspects of her evidence were sensitive or of a confidential nature. The evidence in relation to her parents was general, uncontroversial and in any event she did not identify any of her relatives by name. The application was accordingly refused.
6. Ms Lange contended that she had a long association with Australia dating back to when she first attended a private school in Melbourne from the age of 11 years for a period of six years. Ms Lange has relatives residing in Australia who she visits on a regular basis. She owns a house and two pieces of land in Maryborough Australia and has an Australian bank account.
7. It was Ms Lange's evidence that she attended university in New Zealand but subsequently lived and worked in Sydney between 1976 and 1979 at various jobs including the Australian government teaching migrants. Ms Lange was paid unemployment benefits by the Australian government between August 1997 and March 1978. Since moving to live in Japan, Ms Lange and her husband who is South Korean, have visited Ms Lange's parents and relatives who reside in Queensland. Ms Lange has also visited Australia for the purpose of attending to issues related to her properties and investments in Australia.
8. Ms Lange contends that she has maintained a close and continuing association with Australia for over forty years. She considers Australia to be her home and intends to return to Australia at some time in the future on a permanent basis.
9. The above evidence was not disputed by Mr Sparkes on behalf of the respondent and the Tribunal finds accordingly.
Legislation
10. The relevant legislation is that contained in the Social Security Act and in particular section 7 which relates to Australian resident definitions. The status sought by Ms Lange as a protected SVC holder is defined in sub-sections 2A, 2B, 2 C and 2D.
11. Section 7(2) defines an Australian resident as including a person who is a special category visa holder who is a protected SVC holder.
12. It was agreed that Ms Lange's application for a determination under section 7 was made on 26 September 2006 when she was residing in Japan.
13. Section 7(2E) of the Act states:
"(2E) A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:
(a) the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or
(b) the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001".
14. It is clear that this provision requires the applicant to not only be residing in Australia but to be present in Australia at the time of the application (unless temporarily absent) which clearly Ms Lange was not. Nor could Ms Lange satisfy the provision that she had either been residing in Australia on 26 February 2001 but was temporarily absent or commenced residing in Australia during the period of 3 months beginning on 26 February 2001.
15. Ms Lange agreed in evidence that she entered and departed Australia on a temporary visitors visa on the following occasions between December 1996 and September 2006:
13 December 1996 - 2 January 1997
20 December 1997 - 30 December 1997
13 August 1998 - 25 August 1998
11 March 2001 - 15 March 2001
4 September 2002 - 13 September 2002
8 September 2003 - 22 September 2003
6 September 2004 - 21 September 2004
28 August 2005 - 16 September 2005
20 August 2006 - 16 September 2006
16. There was no other evidence presented nor did Ms Lange contend that she was in Australia either on 26 February 2001 or on 26 September 2006 when she made her application. Her evidence was that she was residing in Tokyo on 26 February 2006.
17. Despite the requirements of section 7(2E), Ms Lange's application was not refused on this basis but because she did not satisfy any of the other qualifying provisions namely those contained in sub-sections 7(2A), 7(2B), 7(2C) or 7(2D) for protected SVC holder status.
18. As Ms Lange was unable to satisfy the requirements of sections 7(2E), her application for protected SVC holder status should have been refused on this basis and at the first instance. In effect her application was invalid and could not have been considered under the other qualifying provisions of section 7.
19. Ms Lange submitted that the law is unfair and unjust and fails to take account of her previous residency status which existed prior to the 2001 Amendment. Ms Lange contended that the 2001 Amendments were not designed to exclude Australian residency status for persons in her circumstances but were intended to capture persons migrating to Australia post 2001.
20. Apart from the saving provisions which applied to persons residing in Australia on 26 February 2001 or being temporarily absent from Australia on that day or persons who commenced or recommenced residing in Australia during the period of three months beginning on 26 February 2001, the legislation makes no other allowance for those persons who may have acquired special category visa holder status prior to 26 February 2001. It was contended by Mr Sparkes that the legislation exhibits a deliberate intention to make provision for persons who were resident in Australia on 26 February 2001. Mr Sparkes suggested that the legislative provisions are clear and unambiguous and do not afford a discretion.
21. This legislation has been similarly interpreted by the Tribunal on several previous occasions where the Tribunal has held that the provisions do not allow for the exercise of a discretion. For instance in Re QX05/5 and Secretary, Department of Family and Community Services [2005] AATA 646, Mr Christie, Member, held that section 7(2F) prescribed time lines that had to be met. In Re DEWR and Blakely [2007] AATA 1450, the application had been made outside the applicable three year time period and the Tribunal accordingly set aside the decision under review and substituted a decision that the applicant is not an Australian resident within the meaning of section 7. The Tribunal concluded that the clear purpose of the amendments is to impose very limiting criteria which include time limits in relation to determinations within section 7(2E) and 7(2G).
22. In the current case not only is the applicant unable to satisfy the requirement that she was residing in Australia on 26 February 2001, but she also fails to meet the requirement that her application be made within the requisite time frame prescribed by section 7(2F).
23. The Tribunal in SDEWR and Rhodes [2007] AATA 1664 similarly concluded that the legislation provided for no discretion to consider the factual circumstances of the applicant. The Tribunal overturned the decision of the SSAT which had concluded that the Secretary had a residual discretion to ignore the fact that the applicant had failed to apply for a determination within the required three year time period as prescribed by section 7(2E) of the Act.
24. Dr Gordon Hughes, Member, reflected on the purpose of the scheme created by section 7(2A) to (2G) referring to the Explanatory Memorandum for the Family and Community and Services Legislation Amendment (New Zealand Citizens) Act 2001. Dr Hughes commented at paragraph 21 that the legislation provided that:
"New Zealand citizens who ... took up residence in Australia within a period of three months from 26 February 2001 were exempted from the effect of the changes for a three year period so as to minimise any adverse and capricious effects of the new rules on persons who are already committed to moving to Australia. Beyond that three year period, however, New Zealand citizens would only retain their protected status if they had taken one of the steps prescribed by section 7(2C) - either by applying for a determination under section 7(2E) or by making a claim for Social Security payments. In other words, the legislation was structured in a manner which deliberately acknowledged and accommodated the special circumstances of New Zealand citizens who were committed to becoming Australian residents at the commencement of the scheme. It seems improbable that the legislature would have intended that this precisely defined leeway could be further extended at the discretion of the Secretary".
25. I agree with Dr Hughes' comments and his statement that the conclusion as outlined above is consistent with the directions contained in the Guide to Social Security Law at 3.1.1.10. The Guide provides that in order to become a protected SCV holder, a person who began residing in Australia within three months of 26 February 2001 must apply for a determination by 26 February 2004.
26. The Tribunal in Re Anab Jama and S, DEWR [2005] AATA 1188, concluded that section 7(2F) provides no discretion for the Secretary to make a determination out of time when the application was made over three years after the required date.
27. All of the authorities referred to support a conclusion with which I agree, that the relevant legislative provisions do not afford a discretion to depart from the very strict time frames which are contained in section 7(2A) to (2G).
28. Ms Lange contended that these provisions should not apply in her case where she is able to demonstrate a clear attachment to Australia supported by various periods of residency. Ms Lange said that she was not aware of the changed legislation at the time of making her application. Ms Lange also referred to the fact that she had sought a Centrelink benefit in 1997.
29. Ms Lange however failed to refer to any legislative provisions that support the relevance of any of these factual circumstances. The legislative provisions that govern the consideration of Ms Lange's application for Australian residency status are unambiguous and do not afford the exercise of a discretion. The evidence supports a finding that there was no valid application which could be considered by the Secretary pursuant to section 7(2) because Ms Lange failed to comply with the requirements of sub-section 7(2E) that she be residing in Australia at the time of making her application.
30. Accordingly the decision of the Tribunal must be to affirm the decision under review rejecting Ms Lange's application for protected special category visa (SVC) status.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 24 January 2008
Date of Decision 13 February 2008
Solicitor for the Applicant Applicant on her own behalf
Solicitor for the Respondent Mr B Sparkes, Centrelink Legal Services
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