LEON TEKIELA and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 833
•26 November 2012
[2012] AATA 833
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2012/1662 |
| Re | LEON TEKIELA |
| APPLICANT | |
| And | Secretary, Department of Families, Housing, Community Services and Indigenous Affairs |
| RESPONDENT |
DECISION
| Tribunal | The Hon R J Groom AO (Deputy President) |
| Date | 26 November 2012 |
| Place | Hobart |
The decision under review is affirmed.
………………………………………………….
The Hon R J Groom AO (Deputy President)
CATCHWORDS
Social Security - age pension – applicant in Australia on visitor’s visa only – now residing in Poland - whether an Australian resident – Social Security (International Agreements) Act 1999 – Agreement between Australia and Poland - applicant not an Australian resident - no discretion - decision under review affirmed
LEGISLATION
Social Security Act 1991 ss 7(2), 7(6), 7(6AA), 43(1)
Social Security (International Agreements) Act 1999 ss 3, 16
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
The issue in this application is whether the applicant, Mr Tekiela, is entitled to the benefit of an Australian age pension.
BACKGROUND
On the 14 April 2011 Mr Tekiela made a claim for the Australian age pension. On the 27 June 2011 Centrelink rejected the claim because Mr Tekiela had never been an Australian resident. On the 2 April 2012 The Social Security Appeals
Tribunal (SSAT) affirmed that decision. This is a review of the decision made by the SSAT.
Mr Tekiela is a Polish citizen. He resides in Poland. He lived in Australia from 1985 until 1990. During that period he held a visitor’s visa.
THE APPLICANT’S CONTENTIONS
During the telephone hearing on the 24 October 2012 Mr Tekiela said that he wished to rely on the documents he had previously forwarded to Centrelink and to the Tribunal.
Mr Tekiela wrote several letters to Centrelink or to this Tribunal including letters dated the 8 August 2011, 10 October 2011, 17 August 2012, 11 August 2012 and 25 September 2012. The Tribunal has before it those letters as well as other documents including the “T Documents”.
Mr Tekiela submits that he lived and worked in Australia for more than 5 years and paid taxes here. His understanding has been that if his period in Australia plus the period of time he contributed to Poland’s pension scheme together add up to more than 10 years then under the International Agreement between Australia and Poland he would be entitled to an Australian age pension. Mr Tekiela expressed his understanding as follows :
“I have received from Centrelink notes for claiming Australian age pension under the Agreement between Australia and Poland on Social Security and on page 4 there is written : , you should claim age pension if : you are over Australian age pension age, and you have lived in Australia for more than 10 years, or
the period of time you have lived in Australia and the period of time that you contributed to Poland’s pension scheme adds up to more than 10 years.
And I comply these requirements” (T-documents Page 1).
Mr Tekiela readily admits that he has never held a permanent visa. He applied for such a visa and is clearly disappointed it was never granted. He is not an Australian citizen. There is no suggestion in the evidence that he ever held a special category visa.
THE ISSUE
The issue to be determined by the Tribunal is whether Mr Tekiela is entitled to an Australian age pension and in particular whether he was ever an “Australian resident” within the meaning of that term in the Social Security Act 1991 (“the Act”).
THE LEGISLATION
Section 43 (1) of the Act provides as follows :
(1)A person is qualified for an 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 an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997 – the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Paragraphs (b) (c) and (d) have no application in the circumstances of this case. The meaning of “qualifying residence exemption” is set out in section 7(6) and (6AA) of the Act. Mr Tekiela is not a refugee or former refugee nor a family member of a refugee or former refugee. At no stage has he ever held a visa of the kind described in section 7 (6AA) (f) of the Act.
Section 7 (2) of the Act defines an “Australian resident” in the following terms:
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following :
1. (i) an Australian citizen;
2. (ii) the holder of a permanent visa;
3. (iii) a special category visa holder who is a protected SCV holder.
INTERNATIONAL AGREEMENT BETWEEN AUSTRALIA AND POLAND
Australian and Poland have entered into an Agreement under the Social Security (International Agreements) Act 1997 (“The International Agreements Act”).
That Act and the Agreement between Australia and Poland do not assist Mr Tekiela other than to allow him to lodge a claim for an Australian age pension whilst residing in Poland.
(Article 11 (1) of the relevant International Agreement provides that where a person has claimed an Australian benefit and has accumulated a period as an Australian resident that is less than the period required then, in certain circumstances, a period of insurance under the legislation of Poland, can be deemed to be a period of Australian residence. However, for Mr Tekiela to benefit from this provision he must have a period of “Australian working life residence”.
The International Agreements Act provides in section 16 that a person’s Australian working life residence is the number of months of the person’s working life in Australia during which the person was an Australian resident.
The term “Australian resident” has the same meaning in the International Agreements Act as in the Act (see section 3 of International Agreements Act). As Mr Tekiela has never been an Australian resident within the meaning of the Act he has therefore not had any “Australian working life residence”.
CONCLUSION
The central issue in this application is whether Mr Tekiela was ever an Australian resident as that term is defined in the Act.
It is not sufficient that Mr Tekiela lived for a period of time in Australia. He must satisfy the requirements of section 43 and section 7(2) of the Act. S. 43(1)(a) is the only paragraph in that sub-section which may have relevance in this application.
As the Tribunal finds that Mr Tekiela has never been an Australian citizen or the holder of a permanent visa or special category visa, it follow that he has not been an “Australian resident” as defined in the Act. He therefore has no entitlement to an Australian age pension.
The Tribunal is bound by Australian law. It finds that there is no discretion in the Act or in any other legislation or otherwise within the law of Australia which would permit the Tribunal to conclude that the applicant’s pension claim is valid.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of |
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Administrative Assistant
Dated 26 November 2012
| Date(s) of hearing | 24 October 2012 |
| Applicant | In person |
| Counsel for the Respondent | Mr Brian Sparkes |
| Solicitors for the Respondent | Centrelink - Program Litigation and Review Branch |
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