Loftus and Secretary, Department of Social Services (Social services second review)

[2015] AATA 631

Loftus and Secretary, Department of Social Services (Social services second review) [2015] AATA 631 (25 August 2015)

Division:  GENERAL DIVISION

File Number:  2015/1323

Re:  HILARY LOFTUS

APPLICANT

And:  SECRETARY, DEPARTMENT OF SOCIAL SERVICES

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  25 August 2015

Place  Melbourne

The Tribunal decides to affirm the decision of the Social Security Appeals Tribunal dated 10 March 2015 which affirmed an earlier decision made by a delegate of the respondent on 16 October 2014 to refuse the applicant’s claim for an age pension. 

……[sgd]………………..…….

Deputy President

CATCHWORDS – SOCIAL SECURITY – AGE PENSION – qualifications – Australian resident – agreement between Australia and United Kingdom regarding social security ameliorated qualifications for age pension – claim not made before agreement terminated – applicant must meet requirement to be Australian resident for ten years – Australian resident by virtue of being holder of permanent visa – requirement cannot be ameliorated by fact that quota restrictions on grant of permanent visa meant applicant had to wait some years – decision affirmed.

LEGISLATION

Migration Act 1958: ss 5(1); 30; 31; 32 to 38B; 39(1); 85; 86; 88 and 91
Social Security Act 1991: ss 7; 7(1); 7(2); 7(5); 7(6); 23(1); 23(5A); 23(5B); 23(5C); 23(5D); 43 and 48(1)
Social Security (Administration) Act 1999: ss 2(1); 3(2); 11(1)(a) and 23(1)
Social Security (International Agreements) Act 1999: ss 2(2); 3; 3(2); 5(1); 6(2); 6(3); 12A and Schedule 1, Item 19

Migration Regulations 1994; Schedule 2; r 804.511; r 1124A

CASES

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353

OTHER MATERIAL

Agreement on Social Security between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland dated 22 April 1992

REASONS FOR DECISION

1. Mrs Loftus seeks payment of an age pension but has been unable to satisfy the requirement that she must have been an Australian resident for ten years.  That is so even though she has lived in Australia for almost 16 years since arriving in 1999.  Although she moved quickly to apply for a permanent visa to remain in Australia, nine years passed before she was granted a subclass 804 (aged parent-migrant) visa.  Without a permanent visa and without being an Australian citizen or coming within an exception she could not be regarded as an “Australian resident”, as that term is defined in the Social Security Act 1991 (SS Act). That meant that she could not qualify for an age pension and I have had to affirm the decision made by the Social Security Appeals Tribunal (SSAT) dated 10 March 2015.  The SSAT’s decision had been to affirm a decision made by a delegate of the Secretary of the Department of Social Services (Secretary) on 16 October 2014 to refuse the application Mrs Loftus made for an age pension. 

   BACKGROUND

1. In this section of my reasons, I set out the findings of fact that I have made having regard to the oral evidence given by Mrs Loftus and to the written material lodged in this matter.  Mrs Loftus was born on 30 March 1922 in the United Kingdom.  She married and, during the war years while her husband served in the armed forces, she worked in war related industries.  When her husband died in 1999, her only child suggested that she move to Australia so that she could be close to where he had chosen to make his home.  Mrs Loftus was granted a temporary subclass 976 (visitor) visa to visit Australia.  She came to Australia on that visa at the end of 1999 to see whether she liked living here and decided that she did.  Furthermore, she decided, she could afford to make the move.  She was receiving a pension from the United Kingdom (UK pension) at that time and had thought that she would be granted an age pension when she settled in Australia.  Payment of that pension would have taken account of her UK pension whose value has been greatly eroded by the passage of time, the termination of the social security agreement between Australia and the United Kingdom and, until recently, unfavourable exchange rates.  As she still teaches art on a continuing and paid basis at two different Neighbour Hood Centres and as meets the relevant criteria, she receives a mobility allowance.  Current payment rates of the mobility allowance range between $91.80 and $128.40 each month. 

1. On 1 February 2000, Mrs Loftus was granted a temporary subclass 010 (bridging visa) after she lodged an application for a subclass 804 (aged parent-migrant) visa. Her application was granted on 9 January 2009. I return to the nine year wait and the statutory regime that led to that outcome at [24]-[29] below. On 1 July 2014, Mrs Loftus became an Australian citizen. Her son had been assisting her but he has been very seriously ill and, although somewhat recovered, is now no longer able to work full-time and provide her with financial assistance as he had previously done.

CONSIDERATION

1. I now set out my reasons for reaching my decision.  They involve a consideration of the interaction between the SS Act, the Social Security (International Agreements) Act 1999 (SSIA Act) and the Agreement on Social Security between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland dated 22 April 1992 (Australia/UK Agreement).  Those provisions require me to consider when Mrs Loftus first became an Australian resident.  In her circumstances, that depends on when she first became the holder of a permanent visa.  The only permanent visa Mrs Loftus has held is a subclass 804 (aged parent-migrant) visa.  She is understandably upset about the nine year wait for that visa. 

Is Mrs Loftus qualified under the Australia/UK Agreement?

A.Interaction between the Australia/UK Agreement and social security law

1. As a general proposition:

   ““It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute ….  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive ….  So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. …”[1]

   [1]: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353 at [25]; 365 per Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting)

1. The Australia/UK Agreement has been incorporated into Australian domestic law.  It is what is called a “scheduled international social security agreement” for the purposes of the SSIA Act.[2]  The provisions of a scheduled international social security agreement have effect despite anything in the social security law.  The “social security law” includes the SS Act.[3]  That general proposition is, however, qualified by the provisions of s 6(2) of the SSIA Act.  It provides:

   “Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law.”

   [2] SSIA Act; s 5(1) and see also Schedule 1 in which the text of the Australia/UK Agreement appears

   [3] SSIA Act; s 3(2)

B.The Australia/UK Agreement and age pensions up to 20 March 2000

1. Article 4 of the Australia/UK Agreement dealt with age pensions.  The effect of paragraph 1 of Article 4 was that, where a person was qualified to receive an age pension under Australian legislation, it was payable under that legislation and Article 4 did not apply.

B.1     Australian resident: a deeming provision

1. That did not mean, however, that the Australia/UK Agreement had no part to play in determining whether a person qualified for an age pension under Australian legislation.  Paragraph 2 of Article 4 was relevant in determining whether a person would be regarded as an “Australian resident” for any period before his or her last arrival in Australia.  It provided:

   “For the purposes of any claim by a person to receive an age pension under the legislation of Australia, that person shall be treated as an Australian resident for any period prior to that person’s last arrival in Australia for which:

   (a)that person; or

   (b)       if that person is a woman who has been married, her husband,

   paid contributions, or had earnings or contributions credited under the legislation of the United Kingdom.”

1. Had Mrs Loftus made a claim for age pension on her arrival in Australia or at any time in the first year of so of her residency, she could have taken advantage of this deeming provision in so far as it applied to her.  I do not need to explore this matter further for I find below that she did not lodge a claim.  Even if she had done so, Australian residency would only have been one of the criteria she would have been required meet.  Others would have been the assets and income tests. 

B.2     The claim

1. The reference in paragraph 2 of Article 4 to a claim is a reference to a claim made for an age pension.  Until 20 March 2000, s 48(1) of the SS Act provided that:

   “Subject to subsection (3), a person who wants to be granted an age pension must make a proper claim for that pension.

   Note:for proper claim—see section 49 (form), section 50 (manner of lodgment) and section 51 (residence/presence in Australia).”

1. That provision was repealed with effect from 20 March 2000 when the Social Security (Administration) Act 1999 (SSA Act) was enacted and came into operation.[4]  Section 11(1)(a) provided that, with limited exceptions that are not relevant in this case, “… a person who wants to be granted: (a) a social security payment … must make a claim for the payment … in accordance with this Division.”  A “social security payment” includes a “social security pension” and a “social security pension” includes an age pension.[5]  Section 16 of the SSA Act provides that a person makes a claim for a social security payment by lodging a written claim for the payment or in some other manner approved by the Secretary.

   [4] SSIA Act; s 2(2) and s 3 and Schedule 1, Item 19 and see also SSA Act; s 2(1)

   [5] SSA Act; s 23(1) of the SS Act which applies because s 3(2) of the SSA Act provides that, unless the contrary intention appears, an expression that is used in the SS Act has the same meaning when it is used in the SSA Act.

C.The Australia/UK Agreement and age pensions after 20 March 2000

C.1Transitional provisions

1. The Australia/UK Agreement remained in force until the expiration of 12 months from the date on which either party to it received from the other written notice of the other’s intention to terminate it.[6]  On 1 March 2000, Australia notified the United Kingdom that it would terminate the agreement with effect from 1 March 2001. 

   [6] Australia/UK Agreement; Article 26, paragraph 1

1. Transitional arrangements had been agreed upon between Australia and the United Kingdom should this occur.  They are set out in paragraph 2 of Article 26:

   “In the event that this Agreement is terminated in accordance paragraph (1), the Agreement shall continue to have effect in relation to all persons who by virtue of this Agreement:

   (a)at the date of termination, are in receipt of benefits; or

   (b)prior to the expiry of the period referred to in that paragraph, have lodged claims for, and would be entitled to receive, benefits.”

C.2     Application of transitional provisions

1. Mrs Loftus was in Australia both before 1 March 2000 as well as after and remained so up to 1 March 2001.  She cannot, however, take advantage of the transitional provisions.  There are two reasons.  The first relates to the fact that she had not lodged a claim for an age pension before the termination of the Australia/UK Agreement.  Had she lodged a claim, she would have clearly met the age criterion for the age pension.  She could have taken advantage of Article 4 in relation to the period up to 1 March 2001.

1. The second arises from the application of s 12A of the SSIA Act.  It provides:

   “On and after 1 March 2001, the social security law has effect in relation to a person who last became an Australian resident on or before 1 March 2000, as if the agreement the text of which is set out in Schedule 1 had not been terminated.”

For all practical purposes, the effect of s 12A is that, unless a person was an Australian resident on or before 1 March 2000, the Australia/UK Agreement can have no application.  If the person had been, that agreement would have continued to have effect as if had not been terminated. 

1. Even if Mrs Loftus had lodged a claim, she would not have been able to take advantage of the preservation provision in s 12A for she would not have been able to establish that she was an “Australian resident” before 1 March 2000.  The expression “Australian resident” is defined in s 23(1) of the SS Act to have the meaning given to it by s 7(2) of that legislation.  As that term is also relevant in considering the qualifications for an age pension under the SS Act, I will consider it in that context.

Social Security Act: qualifications for an age pension

1. Section 43 of the SS Act sets out the criteria that will qualify a person for age pension.  Only one of those criteria need be met and, in Mrs Loftus’s situation, there is only one that has relevance.  It is s 43(1)(a).[7] 

   “(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)-(d) …”

   [7] Section 43(1)(b) does not apply.  It applies if a person has “a qualifying residence exemption for an age pension”.  A person has a qualifying residence exemption for, among others, a social security pension (which includes an age pension),”… if, and only if, the person:(a)  resides in Australia; and (b)  is either: (i)  a refugee; or (ii)  a former refugee.”: SS Act; ss 7(1) and (6).  Sections 43(1)(c) and (d) have no application for Mrs Loftus was not receiving “… a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching …” pension age.  Reference to s 6(3) of the SSIA Act, as required by s 43(3) of the SS Act, does not assist Mrs Loftus.  The term “pension age” has the meaning given by ss 23 (5A), (5B), (5C) or (5D) of the SS Act.  Regard Section 43(2) does not apply because Mr Loftus was never an Australian resident.

1. The critical issue is whether Mrs Loftus has qualifying Australian residence for there is no question that she has reached pension age.  The expression “qualifying Australian residence” is defined in s 7(5):[8]

   “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.”

   [8] SS Act; s 7(1)

1. The expression “Australian resident” is defined in s 7(2) of the SS Act:

   “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 terms “holder” and “permanent visa” have the same meanings as in the Migration Act 1958 (Migration Act).[9]

[9] SS Act; s 7(1)

1. Generally, the “holder” of a visa is the person to whom it was granted or a person included in it.[10] Section 5(1) of the Migration Act provides that the term “permanent visa” has the meaning given to it by s 30(1) of the same legislation.  Section 30, which sets out the kinds of visas that may be issued, also defines the term “temporary visa” and I will set out both definitions for each throws light on the other:

   “(1)     A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.

   (2)A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:

   (a)during a specified period; or

   (b)until a specified event happens; or

   (c) while the holder has a specified status.”

   [10] Migration Act; s 5(1)

1. Section 31(1) provides that “There are to be prescribed classes of visas.” A visa is of a particular class if the Migration Act or the regulations made under it specify that it is a visa of that class.[11] In addition, there are classes of visa provided for in ss 32 to 38B of the Migration Act. Each class of visa is identified as either a temporary or permanent visa. The regulations may prescribe criteria that must be met for a visa or visas of a specified class[12] and they may prescribe whether visas of a specified class are visas to travel to and enter Australia, or to remain in Australia, or both.[13]  A visa is of a particular class if either the Act or regulations specify that it is a visa of that class.[14] 

   [11] Migration Act; s 31(5)

   [12] Migration Act; s 31(3)

   [13] Migration Act; s 31(4)

   [14] Migration Act; s 31(5)

1. The subclass 010 (bridging) visa held by Mrs Loftus when she entered Australia on 1 March 2000 was a temporary visa. That is so because s 37 of the Migration Act provides that there are classes of temporary visas to be known as bridging visas. The subclass 804 (Aged Parent) visa granted to Mrs Loftus on 9 January 2009 was a permanent visa because r 804.511 of Schedule 2 to the Migration Regulations 1994 (Migration Regulations) provided that was so.[15]  The consequence of her being granted the permanent visa was that she was able to satisfy paragraph (b)(ii) of the definition of “Australian resident” in s 7 of the SS Act.  As she already resided in Australia as required by paragraph (a) of the definition, she became an “Australian resident” for the purposes of the SS Act on and from 9 January 2009.  The fact that Mrs Loftus later became an Australian citizen on 1 July 2014 does not alter the date on which she became an Australian resident for the purposes of the SS Act.

   [15] Migration Regulations 1994; Schedule 2

1. When Mrs Loftus lodged her claim for age pension on 3 October 2014, she was had been an Australian resident for over five years but, unfortunately, well short of the ten years required to meet the criteria to qualify for an age pension.  Although some ten months have elapsed since Mrs Loftus lodged her claim, she must still wait until early in January 2019 before she is qualified.  For that reason I must affirm the decision of the SSAT dated 10 March 2015 affirming the decision made by a delegate of the Secretary on 16 October 2014.

Mrs Loftus’s application for a subclass 804 (aged parent-migrant) visa

1. One of the matters that has distressed Mrs Loftus is the time between her qualifying for the subclass 804 (Aged Parent) visa and her being granted it.  Although that is not a decision that I have power to review, I will set out how that came about. 

1. As I have said earlier, s 31(3) of the Migration Act provides, in general terms, that the regulations may prescribe criteria for a visa or visas of a specified class. Regulation 1124A provides for an Aged Parent (Residence) (Class BP) visa of which 804 (Aged Parent) is a subclass. That regulation sets out the criteria that must be met. Mrs Loftus met them well before she was granted the visa on 9 January 2009. Meeting those criteria, though did not guarantee that she would be granted the visa. Section 39(1) of the Migration Act provides that one of the criteria that may be prescribed for visas of a class is that:

   “… the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).”

1. The power to specify that criterion dovetails with the provisions of Subdivision AH of Division 3 of Part 2 of the Migration Act. Section 85 in that Subdivision provides that the Minister may, by notice in the Commonwealth Government Gazette, determine the maximum number of visas of a specified class or classes that may be granted in a specified financial year.  If the Minister makes such a determination, no more visas of the class or classes may be granted in the year to which the determination relates.[16]  The fact that the grant of a visa is prevented because the limit has been met in a particular year, does not prevent other action being taken in relation to the application itself.[17] The effect of s 91 of the Migration Act is that the Minister may consider or, subject to not exceeding the limits as required by s 86, dispose of outstanding and further applications in such order as he or she considers appropriate.

   [16] Migration Act; s 86

   [17] Migration Act; s 88

1. The visa for which Mrs Loftus had applied – the Aged Parent (Residence) (Class BP) visa – was subject to quotas.  On 7 May 2007, for example, the then Minister set the maximum number that could be granted in the financial year 1 July 2006 to 30 June 2007 at 305.[18]  A different Minister had, on 14 February 2005, set the maximum number at 320 for the financial year 1 July 2004 to 30 June 2005.[19]

   [18] Visa Capping for 2006/2007 Financial Year: Aged Parent (Residence) (Class BP) Visas: Legislative Instrument No. F2007L01324

   [19] Determination of maximum number of Aged Parent (Residence) (Class BP) Visas that may be granted in the 2004/2005 Financial Year: Legislative Instrument No. F2005L01287

1. Although Mrs Loftus waited many years for her visa and the knowledge will be of cold comfort to her, it is apparent from the website of the Department of Immigration and Border Protection (DIBP) that she was granted it well before some others.  The website states:

   “There can be long waiting times of up to 30 years before this visa is approved.”

1. Why this should be so is not a matter on which I can comment. Mrs Loftus may wish to pursue it with DIBP or with the Commonwealth Ombudsman but s 85 of the Migration Act clearly gives the Minister the power to fix limits on the number of visas granted in any year. That is an issue separate from when she was in fact granted a permanent visa being the 804 (Aged Parent) visa. Mrs Loftus’s qualification for an age pension is dependent on the date on which she was in fact granted that visa.

I certify that the twenty nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………...........[sgd].........................................

Associate

Date of Hearing  7 August 2015

Date of Decision  25 August 2015

For the Applicant  self represented

For the Respondent  Mr J Henderson, departmental advocate