Mack; Secretary, Department of Social Services and (Social services second review) - [2020] AATA 4204

Mack; Secretary, Department of Social Services and (Social services second review) [2020] AATA 4204 (8 October 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2627
Re:Secretary, Department of Social Services
APPLICANT

Christopher MackAnd
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:8 October 2020
Place:Perth

In accordance with s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth),
the reviewable decision dated 6 April 2020 is set aside and substituted with the decision
that Mr Mack did not qualify for Disability Support Pension as at the date of claim,
being 15 October 2019.
.........................[sgd]...............................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – New Zealand citizen –
residency requirements – Agreement – whether New Zealand citizen qualified as resident under Social Security Act 1991 (Cth) – whether New Zealand citizen qualified as resident under Agreement – decision under review set aside
LEGISLATION
Acts Interpretation Act 1901 (Cth) – s 15AA
Administrative Appeals Tribunal Act 1975 (Cth) – ss 41(2), 43(1)(c)(i)
Migration Act 1958 (Cth) – ss 5(1), 29(1), 30(1), 32
Social Security Act 1991 (Cth) – ss 7(2), 7(2)(b)(i)-(iii), 7(2A), 7(2B), 7(2C), 7(2D), 7(5), 7(6), 7(6AA), 94(1)(c), 94(1)(e), 94(1)(e)(i), 94(1)(e)(ii), 94(1)(e)(iii), 94(1)(e)(a), 94(1)(e)(iii)(B)
Social Security (Administration) Act 1999 (Cth) – cl 4, sch 2
Social Security (International Agreements) Act 1999 (Cth) – arts 1(1)(m), 1(2), 2(2), 5(1), 5(3), 5(5), 12, 12(1)
CASES
Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75
Pillai and Secretary, Department of Social Services (Social Services second review) [2019] AATA 1233
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Stretch; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1429
SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide – topics 3.6.2.20, 9.1.2.40
REASONS FOR DECISION
L M Gallagher, Member
8 October 2020
BACKGROUND AND CLAIM HISTORY

Mr Mack is a 21-year-old man who was born in Zimbabwe in 1999 (A1, T8, page 175 and T9, page 182). In approximately 2001 or 2002, Mr Mack migrated to New Zealand (A1, T9, page 183 and T22, page 251). On 24 March 2011, he relocated to Australia on a Subclass 444 Special Category Visa,[1] which he holds to date (A1, T8, page 175; T9, pages 182 and 183 and T22 at page 251). Mr Mack is a citizen of New Zealand and has never held an Australian permanent visa.
[1] A Subclass 444 Special Category Visa allows a New Zealand citizen to enter and stay in Australia as long as they remain a New Zealand citizen, work and study in Australia and apply for a permanent visa if eligible (>
On 15 October 2019, Mr Mack lodged a claim for Disability Support Pension (DSP) with the (then) Department of Human Services (now, the Agency),[2] based on his conditions of epilepsy and intellectual disability (A1, T9 and T27, page 269).
[2]
On 13 January 2020, the Agency recommended that Mr Mack was manifestly medically eligible[3] for DSP as he had been assessed as having an IQ of lower than 70 (A1, T16,
page 228). The rationale supporting the Agency’s recommendation relevantly includes
(A1, T16, page 228):
It is suggested that multiple daily seizures and traumatic brain injuries occurring during the developmental period may have contributed to a deterioration in functioning. It is important to note that improved treatment of his epilepsy will not lead to improvements in cognitive function.
[3] Refer further to Topic 3.6.2.20 of the Guides to Social Policy Law: Social Security Guide (the Guide) regarding manifest grants and rejections for DSP and reasons for manifest eligibility and ineligibility.
However, on 17 January 2020 the Agency rejected Mr Mack’s claim for DSP on the basis that he did not meet the Australian residence rules, those rules stated as being that a person must (A1, T17, page 230):
·have been living in Australia or New Zealand when [they] became severely disabled, and
·have lived in New Zealand for at least one year before [they] were assessed as severely disabled.
On 31 January 2020, Mr Mack requested an internal review of the Agency’s decision
(A1, T18 page 233 and T27, page 285).
On 12 February 2020, an Authorised Review Officer (ARO) of the Agency affirmed the Agency’s decision dated 17 January 2020 (A1, T19). In her reasons, the ARO found that Mr Mack did not meet the residence requirements set out in the Social Security Act1991 (Cth) (the Act) or in the Agreement on Social Security Between the Government of Australia and the Government of New Zealand set out in Sch 3 of the Social Security (International Agreements) Act1999 (Cth) (the Agreement). The ARO found, relevantly (A1, T19,
page 236):
…
Residence
To meet the residence requirement you have to have been an Australian resident as defined in section 7 of the Act, that is you must have been either, or a combination of an Australian citizen, or a permanent resident visa holder, or a protected special category visa holder at the time when your continuing inability to work arose, or have 10 years of qualifying residence.
I have found that you have not been an Australian resident as defined in the Act for 10 years. However, I will assess where your continuing inability to work arose.
Continuing Inability to Work
The medical evidence indicates that your medical condition was diagnosed prior to arriving into Australia. This means that you have not met the residence requirement to qualify for Disability Support Pension.
I have considered whether your claim can be assessed under the International Agreement with New Zealand. However, the agreement specifies that only a period of working age residence in New Zealand can be added to periods of permanent Australian residence as defined in section 7 of the Act. I have found that you were a resident of New Zealand until you were 12 years of age. This means you have no working age residence in New Zealand and you cannot be paid Disability Support Pension under the agreement with New Zealand.
On 24 February 2020, Mr Mack applied to the Administrative Appeals Tribunal
(the Tribunal) for a review of the ARO’s decision dated 12 February 2020 (A1, T20).
On 6 April 2020, the Tribunal’s Social Services & Child Support Division (AAT1) set aside the ARO’s decision dated 12 February 2020 and substituted a new decision that Mr Mack was eligible for the payment of DSP from the date of claim (reviewable decision) (A1, T2). The AAT1 found that:
(a)Mr Mack did not satisfy the residence requirements set out in s 7(2) of the Act
(and in turn, fails to satisfy s 94(1)(e) of the Act) because he does not reside in Australia as an Australian citizen, or as the holder of a permanent visa, or as a special category visa (SCV) holder who is a protected SCV holder who was residing in Australia on 26 February 2001 (A1, T2, page 12).
(b)Mr Mack was, however, a New Zealand citizen lawfully residing in Australia and therefore was an Australian resident for the purposes of art 5(1) of the International Agreement[4] (A1, T2, page 12).
(c)Mr Mack otherwise satisfied s 94(1) of the Act (meaning, other than the residency requirement in s 94(1)(e)) and art 2(2) of the Agreement.[5]
[4] Article 5(1) of the Agreement provides that a New Zealand citizen who is not the holder of an Australian permanent visa but who is lawfully residing in Australia is an Australian resident for the purposes of the Australian social security law. Refer further to paragraph [27] below.
[5]
On 5 May 2020, the Secretary applied to the Tribunal’s General Division for:
(a)an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to stay the effect of the reviewable decision; and
(b)a review of the reviewable decision (A1, T1).
Mr Mack, through his legal representative, opposed the Secretary’s application for a stay order.
The stay application was heard by the Tribunal on 20 July 2020, where the parties were provided an opportunity to address the evidence and make submissions.
The Tribunal decided to grant a partial stay in the following terms:
(a)The application for a stay order under s 41(2) of the AAT Act is granted with respect to the payment of arrears of the DSP up until 6 April 2020 (being the date of the AAT1 decision).
(b)The Tribunal refuses to grant a stay order with respect to DSP payments from
6 April 2020, which are to be paid to the Respondent from the next pay date following the date of this decision. That means that the Respondent will receive a lump sum for the DSP payable from 6 April 2020, until the date of this order. He will then receive ongoing fortnightly payments of DSP until further order of the Tribunal.
The present application concerns the Secretary’s application for review of the AAT1 decision dated 6 April 2020. In its application for review, the Secretary claimed the AAT1 decision was wrong because (A1, T1, page 3):
The Tribunal entered into error by failing to consider that the Respondent did not have any working age residence in New Zealand for the purposes of qualifying residency for the disability support pension; and further incorrectly conflated the work test under the Social Security Act 1992 [sic] with the requirement under the Agreement on Social Security Between the Government of Australia and the Government of New Zealand that a person must be totally unable to work as required by Article 1(m).
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
The statutory principles relevant to the Secretary’s application are contained in the Act,
the Social Security (Administration) Act 1999 (Cth) (the Administration Act) and the Agreements.
The Guide to Social Policy Law: Social Security Guide (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so
(refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645).
In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Mr Mack’s eligibility for DSP on 15 October 2019, the date the claim was lodged.
The Social Security Act 1991 (Cth)

16.     Section 94 of the Act sets out the qualification criteria for DSP. Relevantly, s 94(1) of the Act provides:
(1)       A person is qualified for disability support pension if:
(a)       the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

(d) the person has turned 16; and
(da) in a case where the following apply:
(i)the person is under 35 years of age or is a reviewed 2008‑2011 DSP starter;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii)if the person has one or more dependent children—
the youngest dependent child is 6 years of age or over;

the person meets any participation requirements that apply to the person under section 94A; and
(e)       the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)      is not an Australian resident; and
(B)      is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i)the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.

(Emphasis added.)

The qualification criteria in s 94(1) of the Act are cumulative. The Tribunal also notes that ss 94(1)(c) and 94(1)(e) are interrelated.
Note 1 to s 94(1) of the Act states that s 7 of the Act contains the following relevant definitions:
Australian resident
7(2)     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.
Note:   For holder and permanent visa see subsection (1).
(Emphasis added.)
Section 7(1) of the Act provides that holder,[6] in relation to a visa, has the same meaning as in the Migration Act 1958 (Cth) (the Migration Act).
[6] A holder, in relation to a visa, means the person to whom it was granted or a person included in it (s 5(1) of the Migration Act).
Section 7(1) of the Act also provides that permanent visa,[7] special category visa[8] and visa[9] have the same meaning as in the Migration Act.
[7] A permanent visa is a visa to remain in Australia indefinitely (whether also a visa to travel to and enter Australia) (ss 5(1) and 30(1) of the Migration Act).
[8]
[9] A visa is defined as permission granted to a non-citizen, by the Minister, to travel to and enter Australia and/or remain in Australia (ss5(1) and 29(1) of the Migration Act).
Section 7(1) of the Act provides that protected SCV holder has the meaning given by ss 7(2A), 7(2B), 7(2C) and 7(2D). All of ss 7 (2A) to 7(2D) (inclusive) require that the person was residing in Australia on 26 February 2001.
The Guide sets out the policy regarding SCV holders are follows:
9.1.2.40 New Zealand citizens
Introduction
Before 1 September 1994 New Zealand citizens were allowed to enter Australia to visit, work or live without a visa. They had to travel on their New Zealand passport to take advantage of these arrangements.
Special category visa
The SCV for New Zealanders was introduced on 1 September 1994. It allows a
New Zealand citizen to remain in Australia indefinitely. There are no work restrictions for SCV holders.
New Zealand citizens do not have to apply for an SCV prior to coming to Australia. On arrival to Australia, most New Zealand citizens who do not hold another visa and who present a valid New Zealand passport and completed Incoming Passenger Card will be granted an SCV, subject to meeting health and character requirements. The SCV is added electronically to their passport.
Changes from 26 February 2001
In general, most New Zealanders arriving in Australia on an SCV after 26 February 2001 no longer meet the definition of an Australian resident for the purpose of SSAct section 7. Unless they are regarded as a 'protected SCV holder' (see below), they are not entitled to Australian social security payments, except in limited circumstances (see below). New Zealanders who are not a protected SCV holder must apply for and be granted a permanent visa in order to meet the definition of an Australian resident.
Protected SCV holders
An SCV holder regarded as a protected SCV holder is not affected by the
26 February 2001 changes and continues to meet the definition of an Australian resident for the purpose of the SSAct. A person is a protected SCV holder if they fall within one of the following groups:
§an SCV holder who was in Australia on 26 February 2001
§an SCV holder who was in Australia as an SCV holder for a period of, or periods totalling, 12 months during the period 2 years immediately before
26 February 2001
§an SCV holder who commenced or recommenced residing in Australia within 3 months from 26 February 2001, or
§an SCV holder who was residing in Australia on 26 February 2001,
but was temporarily absent.
Some of the protected SCV holder provisions had a time limit in which the person had to seek a determination of their residence status from Centrelink, in order to preserve their entitlement to social security payments in the future. A determination could be applied for by making a request to Centrelink for a decision or by claiming and being residentially qualified for a social security payment. Either determination protected a person's future entitlement to social security payments.
Qualifying Australian residence
7(5)     A person has 10 yearsqualifying Australian residenceif 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.
(Original emphasis.)
Qualifying residence exemption
7(6)A person has a qualifying residence exemption for a social security pension (other than carer payment) or a socialsecurity benefit (other than youth allowance, austudy payment, jobseeker payment, sickness allowance, special benefit or partner allowance) if, and only if, the person:
(a)       resides in Australia; and
(b)       is either:
(i) a refugee; or
(ii) a former refugee.
7(6AA) A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, carer allowance, a mobility allowance, a seniors health card or a health care card if, and only if, the person:
(b) except in relation to pension PP (single), benefit PP (partnered), youth allowance, austudy payment, jobseeker payment, sickness allowance, partner allowance, carer payment, carer allowance, mobility allowance, a seniors health card or a health care card--was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(f) in any case--holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.
(Emphasis added.)
The Social Security (International Agreements) Act 1999 (Cth)
The International Agreements Act gives effect to international social security agreements. The agreement between Australia and New Zealand is incorporated into the International Agreements Act in Sch 3 of the Agreement (refer to paragraph [6] above). A number of Articles in the Agreement are relevant to the present application are set out below.
Severely disabled
Article 1(1)(m) of the Agreement defines severely disabled as a person who:
(m)
(i)has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(ii) to work for at least the next 2 years; and
(iii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(iv) is permanently blind;
For the avoidance of doubt, a person can be severely disabled even if they are not of working age.
(Emphasis added.)

Article 1(2) of the Agreement provides that any term not defined in art 1 shall,
unless the context otherwise requires, have the meaning assigned to it in the social security law of either Party.
Article 2(2) of the Agreement provides that:
2(2)For the purposes of this Agreement an Australian disability support pension and a New Zealand supported living payment shall be limited to cases where:
(a) the person is severely disabled;
(b)the person was a resident of one of the Parties at the date they became severely disabled; and
(c) the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.

(Emphasis added.)
Article 5 of the Agreement contains a number of definitions of residence. Relevantly:
1.“Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia on a special category visa. In deciding whether a person is residing in Australia,
regard must be had to the following factors:
(a)       the nature of the accommodation used by the person in Australia;
(b)the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person’s employment, business or financial ties with Australia;
(d)       the nature and extent of the person’s assets located in Australia;
(e)the frequency and duration of the person’s travel outside Australia; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia;
and “residence in Australia” has a corresponding meaning.

(Emphasis added.)
…
3.“permanent resident of Australia” means a person who resides in Australia and is one of the following:
(a)       an Australian citizen;
(b)       the holder of a permanent visa; or
(c)a protected special category visa holder as defined under the social security law of Australia.

(Emphasis added.)
…
5.“working age residence” means a period of residence in the territory of a Party from the age of 20 until the qualifying age for age pension in Australia or the qualifying age for New Zealand Superannuation,
whichever is relevant, (up to a maximum of 45 years). It does not include any period deemed pursuant to Article 8 or Article 12 to be a period in which a person was an Australian resident or a New Zealand resident.
For the purposes of Articles 9, 10 and 13, if a person’s period of working age residence would, apart from this point, be a number of whole months,
or a number of whole months and a day or days, the period is to be increased so that it is equal to the number of months plus one month.
(Emphasis added.)
Article 12 of the Agreement provides for totalisation of accumulated periods of residence, as follows:
1.Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
(a)a period as an Australian resident that is less than the period required to qualify that person for that benefit under the legislation of Australia;
(b)a period of working age residence in Australia equal to or greater than the period identified in accordance with paragraph 3; and
(c) a period of working age residence in New Zealand.
then:
That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia.
2. Where a person’s period of working age residence in Australia and a period of working age residence in New Zealand coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this Article as a period as an Australian resident.
3.The minimum period of Australian working age residence to be taken into account for the purposes of paragraph 1(b) shall be as follows:
a.for the purposes of an Australian benefit payable to a person present long term in New Zealand, the minimum period shall be one year of which at least six months must be continuous; but
b.for the purposes of an Australian benefit payable to a person present long term in Australia there will be no minimum period.
4.A claimant for an age pension under this Agreement must be of pension age to be able to obtain the benefit of this Article.
As to the interaction between the Act and the Agreement and the extent to which, if any, the provisions of the Agreement qualify or override those in the Act, the Tribunal takes guidance from the decision of Senior Member Puplick AM in Pillai and Secretary, Department of Social Services (Social Services second review) [2019] AATA 1233
(the Pillai decision). A useful summary of these considerations are set out in paragraphs [33] to [46] of the Pillai decision, as follows:
33.In Stretch, the Tribunal considered the relationship between the Agreement and s 94 of the Act in relation to DSP payments. It stated:
9.I respectfully do not adopt the reasoning in
Tamua and Secretary, Department of Social Services [2016] AATA 757.
10. The Agreement does not displace the general operation of the social security law of Australia. Indeed, Article 2(1) of the Agreement confirms that the Agreement shall apply to the ‘social security law’ of Australia in relation to the benefit of DSP (Article 2(1)(a)(ii)). The only modification to the application of the social security law of Australia is found in paragraph 2 of Article 2(2) of the Agreement.
11. Article 2 of the Agreement is not a self-contained legislative regime relating to the entitlement of the respondent for DSP. That Article does not, for example, determine how an applicant would claim DSP or what the rate of payment of DSP is, such matters are governed by the application of the ‘social security law’ of Australia.
34. In similar fashion, again with reference to the construction of s 94 of the Act, the Tribunal in Al-Janabi stated:
23. The Tribunal’s attention was drawn to Tamua and Secretary, Department of Social Services [2016] AATA 757 (Tamua),
wherein Deputy President Alpins considered that the provisions in the New Zealand Agreement relating to the claimant being
“severely disabled” in article 2(2)(a) effectively provided an alternative basis upon which the medical qualification criteria for DSP can be met. Reliance on the Full Court’s judgment in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75 (Mahrous) was said to support this view.
...
27. Having considered the New Zealand Agreement as a whole,
the Tribunal is not persuaded that article 2(2) provides an alternative means of qualification for disability support pension ...
...
28. The Secretary submits that article 2(2) overrides paragraph 94(1)(c) of the Act relating to continuing inability to work, but does not affect paragraphs 94(1)(a) and (b) ...
...
29. The Tribunal considers article 2(2) to be a provision of limitation.
35. The cases to which these decisions make reference adopt a different interpretation of the inter-relationship of the Agreement and the Act.
36. In Tamua the Tribunal had held that a person was entitled to the Australian DSP if they were “severely disabled” for the purposes of Article 2(2) of the Agreement and importing the New Zealand definition of “severely disabled.” The Tribunal further held that:
“83.Given my conclusion that Ms Tamua was
“severely disabled” for the purposes of Article 2(2) of the Agreement when she made her claim for the disability support pension, it follows that she is entitled to disability support pension by virtue of the Agreement. For the reasons I have expressed, it is unnecessary for her to meet any additional requirements which might otherwise apply under s 94(1)(a) to (c) of the Act, as Article 2(2)(a) prevails over those provisions by operation of s 6 of the International Agreements Act.”
37.      That section reads:
6. Overriding of social security law by scheduled international social security agreements
(1)The provisions of a scheduled international social security agreement have effect despite anything in the social security law.
38.In Mahrous the Full Federal Court dealt expressly with the question of whether the Agreement’s language was language of limitation.
39.      It stated:
“45.The Secretary relied on the following textual and contextual considerations as indicating that article 12(4) imposed an additional requirement on a person seeking to claim a disability support pension under the Agreement without affecting that persons’ entitlement to a pension.
(1)The language of article 12(4) of the Agreement is that of limitation, not extension or liberalisation.”
40.      In considering that claim by the Secretary the Full Court ruled
“46. None of these considerations is sufficient to persuade us that the Secretary’s interpretation of article 12(4) should be accepted. First, as we show below, we do not consider that article 12(4) necessarily uses the language of limitation.”
41.While article 12(4) is not directly relevant to this determination, the Tribunal is guided by the Court’s general position that regard should be had to the overriding object of the Agreement which is stated in the Preamble and that, unless expressly stated otherwise, the language if the Agreement should not be read as limiting the rights of applicants.
42.      The Preamble reads:
“Desiring to coordinate the operations of their respective social security systems and to enhance the equitable access by people covered by this Agreement to specified social security benefits provided for by the laws of both countries ....”
43.      The cases in Mahrous are instructive.
44.Mahrous originally came before the Tribunal to determine whether provisions of the Agreement overrode provision of s 94 of the Act related to residency requirements. In its decision the Tribunal held that “the Social Security Act 1991 (Cth) must be used subject to the Social Security (International Agreements) Act 1999 (Cth). This must be so particularly where an International Treaty has been given legislative effect in the law of Australia.” In this instance the Tribunal referenced the High Court decision in Teoh (among others) in coming to its decision to set aside a decision of the Secretary denying the DSP to the applicant.
45. On appeal to a single judge of the Federal Court, it was held that the principles cited from Teoh were not relevant because the international treaty (in this instance the Agreement) had been incorporated into domestic law. Nevertheless the decision of the Tribunal was upheld and the Secretary’s appeal dismissed. In doing so, Logan J discussed the inter-relationship of the Act and the Agreement in the following terms:
23.Here, the International Agreements Act gives an overriding effect to the scheduled international social security agreements, including that with New Zealand, so far as what is termed “social security law” is concerned. That overriding effect is subject, in respect of the age pension, to a qualification found in s 6(3) which is not presently material. Social security law is, in effect, a reference to the International Agreements Act, the Social Security Act and any other Act that is expressed to form part of a social security law, see ss 3(2), 3(3) and 4 of the International Agreements Act.
34.The terms of the recital found in Pt A of the international agreement are not to be ignored. An end to which that agreement, as incorporated into Australian law, is directed is the coordination of the two countries’ social security systems and an enhanced and equitable access by people covered by the agreement to specified social security benefits provided for by the law of Australia and New Zealand. One sees, so far as Australia is concerned, that those specified benefits are the Age Pension, the Disability Support Pension and Carer Payment in respect of the partner of a person who is in a receipt of a Disability Support Pension: see Art 2, para 1(a).
38. Further, to the extent that the totalised outcome derived from Art 12, para 4, differs from that which is found in s 94(1)(e)(ii) read alone, the totalised figure derived from Art 12, para 4, prevails. That is the effect of s 6 of the International Agreements Act. I do not regard Art 12, para 4, as doing nothing more than providing a limitation as to who may take advantage of the international agreement. What it does is to provide a limitation in respect of totalised residence which then becomes paramount, to the extent of any inconsistency,
over s 94(1)(3)(ii) if read alone.
39. What that means in the circumstances of this case, as the tribunal correctly concluded, is that Andro does meet the eligibility criterion when one, as Parliament requires, reads s 94(1)(e)(ii) with the terms of Art 12, para 4, as incorporated by and given paramountcy by
s 6 of the International Agreements Act.
46. The Secretary then appealed the decision of the single Judge to the
Full Court which, in its determination, again dismissed the Secretary’s appeal and affirmed the judgement below. Their Honours again addressed the inter-relationship issue, in the following terms:
62. Further, to construe article 12(4) of the Agreement in the manner for which the Secretary contends would not be justified in light of the preamble to the Agreement. If article 12(4) is construed as the Secretary contends, the article will not “enhance ... equitable access” to disability support pensions. ....
.....
64. A disability support pension is only available under the Agreement where a person is severely disabled, in accordance with article 2(2)(a), and otherwise satisfied the residence requirements in article 2(2). Where a person has an impairment sufficient to qualify as severely disabled, it is unsurprising that article 12(4) treats residence in Australia and New Zealand as equivalent, in order, as the preamble states, “to enhance ... equitable access” to disability support pensions. The position of a severely disabled person necessarily attracts unique considerations and calls for special provision, in order to meet this object.
.....
66. When a claim for a disability support pension was made on behalf of the respondent on 2 March 2011, the respondent had more than
10 years of residence in New Zealand and Australia and thus met the residence criterion in article 12(4). Pursuant to article 12(4) of the Agreement, the respondent was “entitled to claim a disability support pension”. This meant that, under the Agreement, not only could he claim a disability support pension but he also satisfied the residence criterion for the pension set out in this article.
By virtue of s 6 of the International Agreements Act, this residence criterion overrode the residence requirement in s 94(1)(e)(ii) of the Social Security Act. In the circumstances of the case, the respondent can be taken to be eligible to receive a disability support pension from the date when his parents first claimed the pension on his behalf.
(Original emphasis, footnotes omitted.)
ISSUE FOR DETERMINATION
Broadly, the issue for review is whether Mr Mack qualified for DSP at the date of claim.
This in turn requires the Tribunal to consider whether Mr Mack satisfies the residency requirements in either the Act or the Agreement. This is because irrespective of any findings the Tribunal could make in relation to the other qualification criteria in the Act or the Agreement,[10] Mr Mack’s claim for DSP will succeed only if he satisfies the qualifying Australian residence requirements. As mentioned at paragraph [17] above, the qualification criteria in s 94(1) of the Act are cumulative.
[10] Mr Mack submits that he satisfies each of the other qualification requirements in s 94 of the Act and notes that these qualification requirements (other than those relating to residence) have not been disputed by the Secretary (R3, paragraph 14). At hearing, the Secretary responded to this submission by pressing the argument that, rather, it is unnecessary to consider the remaining qualification criteria in circumstances where the residency criterion has not been satisfied (transcript, page 4 [30] and page 5 [5] and [20]).
As the Tribunal has concluded below that Mr Mack fails to satisfy the necessary qualifying Australian residence requirements in the Act and the Agreement, it has not addressed the legislation nor considered the issues in relation to the remaining qualification criteria in s 94 of the Act. In the circumstances, it is not required to do so.
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 15 September 2020. The Secretary was represented by Mr Kelvin Defranciscis, Seconded Lawyer. Mr Mack was represented by Ms Rhea Thomas, Solicitor, Welfare Rights & Advocacy Service. Mr Jo-Han Bay from Indigo Junction and
Mr Matthew Woodford, Public Trustee for Mr Mack, were also present.
[11] Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal announced it was closing to all visitors from Thursday 26 March 2020.
The parties appeared at the hearing via telephone.[11]
The T documents (297 pages) (T1 – T28) were previously admitted into evidence (A1) at the hearing of the stay application on 20 July 2020.
At hearing, the Tribunal admitted the following additional documents into evidence:
(a)Secretary’s Statement of Facts, Issues and Contentions (SFIC) dated
10 August 2020 and List of Authorities (A3).[12]
(b)Mr Mack’s SFIC dated 31 August 2020 and List of Authorities (R3).[13]
[12] Documents previously exhibited as A2 relate to the Secretary’s submissions from the earlier stay application.
[13] Documents previously exhibited as R1 and R2 relate to Mr Mack’s submissions from the earlier stay application.
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Secretary’s submissions
In summary, the Secretary contends that at the relevant time (A3, paragraphs 21, 56-57):
(a)Mr Mack did not satisfy the residency requirements for DSP in ss 94(1)(e) and 94(1)(ea) of the Act;
(b)in particular, Mr Mack did not satisfy any of ss 94(1)(e)(i), 94(1)(e)(ii) and 94(1)(e)(iii); and
(c)Mr Mack did not satisfy the working age residence requirements, for the purposes of totalising under the Agreement, in order to qualify for DSP.
The Secretary has provided the following written submissions in support of its summary position at paragraph [37] above:
Section 94(1)(e)(i) of the Act
(a)The Secretary acknowledges that Mr Mack has legally resided in Australia since
24 March 2011 and that he therefore satisfies s 7(2)(a) of the Act (A3, paragraph 27).
(b)Mr Mack is not an Australian citizen, and so he did not satisfy s 7(2)(b)(i) of the Act (A3, paragraph 28).
(c)Mr Mack is not the holder of a permanent visa, rather his Subclass 444 SCV,
being the visa he held at the date of claim, is a temporary visa (A3, paragraph 29).
He therefore did not satisfy s 7(2)(b)(ii) of the Act (A3, paragraph 32).
(d)Mr Mack is an SCV holder, but he is not a protected SCV holder as he was not residing in Australia on 26 February 2001 (A3, paragraphs 35 and 37). He therefore did not satisfy s 7(2)(b)(iii) of the Act (A3, paragraph 39).
(e)Therefore, Mr Mack did not satisfy s7(2) of the Act (A3, paragraph 40).
(f)Mr Mack was not an Australian resident, and so he could not have satisfied
s 94(1)(e)(i) of the Act (A3, paragraph 40).
Section 94(1)(e)(ii) of the Act
(a)Mr Mack does not satisfy s 94(1)(e)(ii) of the Act, as he does not have 10 years qualifying Australian residence as defined in s 7(5) of the Act (A3, paragraphs 41, 42 and 43).
(b)For completeness, Mr Mack does not have a qualifying residence exemption,
as defined in ss 7(6) and 7(6AA) of the Act because he is neither a refugee nor a former refugee or a family member of a refugee or former refugee. Mr Mack’s entry into Australia was not as a refugee, rather he came to Australia on a Subclass 444 SCV (A3, paragraph 44).
Section 94(1)(e)(iii) of the Act
(a)There is no evidence that Mr Mack is a dependent child of Australian resident
(s 94(1)(e)(iii)(B) of the Act). Mr Mack migrated to Australia with both of his parents in March 2011 (A1, T22, page 251). Therefore, Mr Mack does not satisfy
s 94(1)(e)(iii) of the Act (A3, paragraph 45).
The Agreement
(a)The Secretary accepts that Mr Mack is considered to be an ‘Australian resident’
for the purposes of the Agreement, pursuant to art 5(1) of the Agreement
(A3, paragraph 49).
(b)However, Mr Mack does not have any New Zealand working age residence which can be totalised with his Australian working age residence and therefore he does not satisfy the qualification requirements for DSP under the Agreement
(A3, paragraph 49).
(c)The Agreement provides that a New Zealand citizen can include periods of working age residence in the totalisation of residency for the purposes of meeting the
10-year qualifying Australian residence requirement (A3, paragraph 49).
(d)It is not in dispute that:
(i)Mr Mack has lived in Australia since 24 March 2011, meaning at the date of his claim he had accumulated approximately eight years and six months of qualifying residence (A3, paragraph 50).
(ii)Mr Mack has lived as a resident of New Zealand for approximately nine years from February 2002 to March 2011 (A3, paragraph 51).
(e)However, none of those nine years can be totalised because art 12(1) of the Agreement provides that only ‘working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident’ for the purposes of meeting the 10 year qualifying Australian residence requirement
(A3, paragraph 51) (Emphasis added.).
(f)Article 5(5) of the Agreement defines working age residence as ‘a period of residence in the territory of a Party from the age of 20 until the qualifying age for age pension in Australia or the qualifying age for New Zealand’ (A3, paragraph 52) (Emphasis added.).
(g)Given Mr Mack did not turn 20 years of age until after he was residing in Australia, none of the time of which he was a resident of New Zealand can be included for the purposes of totalising in art 12 of the Agreement, as none of that time was during the period defined as working age residence under the New Zealand Agreement (A3, paragraph 53).
(h)Therefore, Mr Mack is unable to totalise his Australian and New Zealand residency meaning that he cannot meet the 10-year qualifying Australian residence requirement for DSP (A3, paragraph 54).
(i)Mr Mack cannot satisfy the qualifying residency requirements through the relevant provisions in the Agreement as it only permits periods of qualifying residency (working age residence) to be totalised – which does not assist because Mr Mack did not have any at the date of claim (A3, paragraph 55).

At hearing, Mr Defranciscis elaborated on how s 94(1)(e) of the Act and the Agreement ought to be read because in the Secretary’s view (transcript, page 7 [5]-[35]):
…Mr Mack is misconceived about how those sections operate and it appears that what Mr Mack is contending – or rather conceding – is that he doesn’t satisfy section 7(2) of the Social Security Act by itself but rather – and you can see this at paragraph 9 and 13 of their facts and contentions he says that when reading 7(2) and article 5(1) together, you get an extended definition of Australian resident in a way that allows him to then satisfy section 7(2) of the
Social Security Act. In other words, again acknowledging that he is not an Australian resident and does not meet that requirement in the domestic law, but by using a definition taken from the New Zealand Agreement he can be an Australian resident for the Social Security Act.
The first point to make about that is that it overlooks some very key words in article 5(1) so if we can take the tribunal to article 5(1) which is at T3 at page 106 or paragraph 47 of our facts and contentions. And article 5 relevantly states that;
An Australian resident has a meaning given to that term in the
Social Security Law of Australia.
And this is the important part we say, Member, it states that;
But for the purposes of the agreement it also includes a New Zealand citizen who is not a holder of an Australian permanent visa but is lawfully residing in Australia on Special Category Visa.
So we say those key words for the purposes of the agreement must serve a purpose, must have a meaning and the meaning is clear that the definition applies for the purposes of – or for use within – the New Zealand Agreement, which means you can’t pluck it from the New Zealand Agreement and use that as evidence that he is an Australian resident in the Social Security Act.
(Emphasis added.)
Mr Defranciscis also submitted that to read art 5(1) of the Agreement as a way of making Mr Mack an Australian resident for the purposes of the Act would be stray into legal error because (transcript, page 8 [10]-[45] and 9 [5]-[15]):
…We say that article 5(1) is to be reads [sic] such that it allows a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia on a Special Category visa to be an Australian resident as it is used in the New Zealand Agreement. Now, this means that Mr Mack is able to accumulate time as an Australian resident for the purposes of meeting any minimum qualifying periods. Now, we are referring, of course, to article 12,
which we have set out at paragraph 48 of our facts and contentions and just going to that article, we say that it applies as agreed – it applies where a person to whom this agreement applies, so yes, there really isn’t any dispute about that. It applies where this agreement applies;
Has claimed an Australian benefit under this agreement.
And this is satisfied because Mr Mack does not meet the requirements of the Social Security Act and so must claim the benefit through the New Zealand Agreement. And then “has accumulated” and article 12(1)(a) is;
A period as an Australian resident.
The use of the term there isn’t suggesting that he is an Australian resident in accordance with article 5, it is saying that there is a period of time as an Australian resident. And so how do we calculate the period an [sic] Australian resident under the agreement? We say that you calculate that period by using article 5; for what period of time was Mr Mack residing in Australia as a New Zealand citizen? In this case it is undisputedly eight years and approximately six months at the date of claim, as we have set out at paragraph 50 of our facts and contentions.
12(1)(b) it [sic] is a period of working age residence in Australia and 12(1)(c) is a period of working age residence in New Zealand, so accumulating those periods.
So for the definition of “working age residence) [sic] we go back to article 5 and it’s article 5(5) which defines it as;
A period in the territory of a party from the age of 20 until the qualifying age for age pension.
It does not include any periods which the person is deemed to be an Australian resident under article 12. In other words you can’t overlap the working age residence with the period where you are an Australian resident.
So going back to article 12(1)(b) we can’t overlap and so that doesn’t apply.
And importantly, article 12(1)(c) and this is why we say Mr Mack does not get to the ten years qualifying residency and it is because while he had moved to Australia at age 12, he cannot have accumulated any periods of working age residency which is only from the age of 20, in accordance with article 5(5).
So following article 12 i [sic] just makes it clear that Mr Mack does not arrive at the ten years minimum qualifying period, the ten years in 94(1)(e)(ii) and he is left with, unfortunately, eight and-a-half years of Australian residence and so cannot qualify under the New Zealand Agreement.
(Emphasis added.)
Mr Mack’s submissions
In his SFIC, Mr Mack contends that he satisfies the necessary qualifying residency requirements for DSP as follows (R3, paragraphs 7 to 13):
(a)The relevant definition of Australian resident in the present application is provided by s 7(2) of the Act read together with art 5(1) of the Agreement.
(b)Australian resident in art 5(1) of the Agreement has the meaning given to that term in the Act but for the purposes of the Agreement includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia on a special category visa.
(c)Article 5 of the Agreement extends the definition of Australian resident contained in s 7(2) of the Act.
(d)Mr Mack satisfies art 5 of the Agreement as the holder of a SCV.
(e)Mr Mack first satisfied s 94(1)(c) of the Act some years after his arrival in Australia and he continues to have the right to lawfully reside in Australia as an Australian resident.
(f)Mr Mack, in his view, satisfies s 94(1)(e)(i) of the Act, therefore it is unnecessary to consider the paragraphs of the Agreement concerning working age residence or totalisation.
At hearing, Ms Thomas further explained Mr Mack’s submission at paragraph [41(c)] above, that art 5 of the Agreement does in fact extend the definition of Australian resident contained in s 7(2) of the Act, as follows (transcript, pages 10 [30]-[45], 11 [5], [40] – [45] and 12 [5]:
…I suppose our submission is that we feel that the Secretary misled in finding that article 5 provides the legislative scope for the agreement. We would submit the legislative scope of the international agreement would actually be outlined in article 2 of the agreement as opposed to article 5, so if I could just take you, Member, to article (2) of the agreement which is the legislative scope of the international – Social Security International Agreement (indistinct), Schedule 3, so at article 2(1), except and provided under paragraph 2, which are different payments;
This agreement shall apply to the following laws as amended at the date of signature of this agreement and any legislation that subsequently amends, supplements, consolidates or replaces them.
So in paragraph (a) in relation to Australia the Act forming the Social Security Law insofar as the Acts provide for, apply to or affect the following benefits, and No.2 does outline that disability support pension is one of the benefits that this legislation under the agreement does provide scope for and on that basis we argue that article 5 extends the definition as outlined in the Social Security Act to incorporate the purpose of the disability support pension that the definition of an Australian resident can be considered as (indistinct) article 5.
…
…I suppose the operation of the agreement obviously is that under the Act it would read that no-one would qualify unless they me [sic] the residency criteria of being an Australian citizen or permanent resident, so the purposes of [sic] agreement being – coming into effect were to cater for the set group of people who would be – are residing in Australia permanently, however potentially due to the immigration or visa status are limited in being able to access payments that were not essentially designed to exclude them from being able to obtain those payments, and so it extends the operation of how that arrangement between Australia and the said countries in the agreement would cater for those individuals.
So in article 1, that definition of Australian residence, given the meaning under article 5(1)(a) and our argument around that definition of Australian resident being extended by article 5 is a point of law that has been considered in previous matters and the decisions in Stretch and Pillai, which were listed in our list of authorities, share the similar view in the respective decision maker (indistinct) that the intention of having this agreement put in place wasn’t to exclude or limit this group of people, rather to incorporate those who, under the agreement, can include a New Zealand citizen who not the holder of an Australian permanent visa but is lawfully residing in Australia on a special category visa.
(Emphasis added).
Parties’ further submissions regarding the interrelationship between the Act and the Agreement
At this stage of the hearing, the Tribunal invited Mr Defranciscis to provide the Secretary’s view on Mr Mack’s interpretation of the Stretch; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1429 (the Stretch decision) and
the Pillai decisions in light of Ms Thomas’ submissions at paragraph [42] above (transcript, pages 12 [35]-[45], 13 [5]-[35] and [40] and 14 [5]):
The Deputy President in that matter [Stretch] was obviously talking about the way that the two legislative pieces operate. And let me just go to the page. I believe it was at – I mean, he makes a couple of points in this case in that it doesn’t displace the general operation of the Social Security Law. In other words, the first point he is making is that the New Zealand agreement doesn’t completely cater for DSP. At paragraph 11 he is talking about there are still things that need to be met from the Social Security Act.
But I think the point that Ms Thomas is referring to is at paragraph 13 and it is where there is perhaps some confusion about the way it has been applied, is that the Deputy President – so it’s article 5(1) of Schedule 3 of the International Agreement that provides that
A New Zealand citizen who is not the holder of an Australian permanent visa but who is lawfully residing in Australia is an Australian resident for the purposes of the Australian Social Security law.
Now, we say that is wrong because you are not an Australian resident for the purposes of Australian Social Security Law. He then clarifies it by saying that the respondent is a New Zealand citizen lawfully residing in Australia and is therefore an Australian resident for the purposes of article 5(1) of the Schedule and then goes on to say that,
The respondent will therefore qualify for DSP providing that she satisfies section 94.
What the Deputy President didn’t do there was go to article 12, and in this case, in Stretch, if [sic] the person who would have had ten years of residency and therefore the totalising would have been in her favour in any event.
So she arrived in Australia in 2004 and made a claim for DSP in 2016. That’s how we read Stretch.
And just to go to the other cases that Ms Thomas has referred to, a few points.
The first is Mareus(?)[14] which is the Federal Court case. The first point to make about that is that the difficulty with that case and it being applied in this case is that the legislation has since been amended and if you go to the very clear, I guess, extrinsic material about why that was amended, you will see that it was to make sure that the – I am referring to it as “mischief” but that the intention of the agreement was to make sure that ten years of qualifying residency was clear. Mareus [sic] was making it a point in there that it wasn’t. The legislation was amended to fix that and it’s not something which supports Mr Mack’s case – in fact it probably supports the Secretary’s more because it shows that the amendments were made to secure that.
The other case that they have cited is Pillai…
…
…I think the main paragraphs we would refer to there is that really, at 62 to 68 where the Senior Member – as we have done – goes through whether Mr Pillai meets the requirements in the Social Security Act and then goes to the New Zealand Agreement. But ultimately, at 65, (indistinct) of the totalising provisions and in fact says that the totalising provisions of the New Zealand Agreement operate in such a fashion as to accord residential status in Australia for DSP purposes on the basis of the combined time an applicant has been a permanent resident of either country, taken in combination, the ten year requirement has been described by this tribunal as being a part-operation, but ultimately it was met in that case because it was, again, someone who had ten years of qualifying residency. That case doesn’t make the applicant, Mr Pillai, a resident for the purposes of section 7 or clause 4 of the Social Security Act.
…
(Emphasis added).
[14] Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75.
Following the Secretary’s further oral submissions at paragraph [43] above, Ms Thomas sought to expand on the reasons for Mr Mack’s reliance on the Stretch decision, with input from the Tribunal and Mr Defranciscis as follows (transcript, pages 15 [15] – [45],
16 [5] – [45], 17 [5], [25] – [45], 18 [5] – [45] and 19 [5]):
MS THOMAS: … if we come back to section 94 of the Social Security Act at subsection (e), there are three dot points there as to how a person would residentially qualify. So, these are not prescriptive clauses they’re either/or. So either 1, 2 or 3. And in the certain (indistinct words) making an application for or someone making an application on disability support pension. As long as they were able to satisfy either 1, 2 or 3, the relevant decision would relate to whichever
(audio malfunction). So, our argument is that it’s a very harsh interpretation that [sic] the agreement if the qualification was required to be interpreted on what is outlined in the international agreement, because the Act itself only requires that the person is either (a) an Australian resident at the time when they first had applied paragraph (c), or an alternative method of obtaining a payment is where someone has ten years of qualifying as Australian resident.
It’s our submission that the various aspects of the agreement relate to extend the understanding or this particular paragraph on residency under section 94, for applicants who are claiming who aren’t a citizen of Australia. So, Australian residents and our arguments about the extension of the definition of Australian resident, are simply meant that in those decisions the member has also considered how the operation of the Act and agreement interacts with one another. And obviously I do understand that that is a discretion that is up to you\ [sic], Member, to make in terms of how these instruments interact with one another. But if it was the intention that a person could not qualify without being here for ten years, to meet the definition of an Australian resident, that that would almost combine (e) 1 and 2 into one (indistinct) one clause.
And in addition, it would almost suggest that it would be impossible for anyone to qualify under the age of 30 because there would be no way for them to accumulate that residency period from the age of 20. Because if we look at that working age residency and (audio malfunction) that that the work – that that age doesn’t start until the age of 20. So, that would be fairly limiting in its interpretation to say that a person would not be able to qualify then after the age of turning 30, which we can’t imagine was the intention behind the operation of the agreement. Rather to be read as an additional means of defining Australian residents to supplement the legislation that already exists for qualifying under section 94.
MEMBER: Mr Defranciscis, I think what Ms Thomas is saying that she considers the interpretation to be quite harsh given that on that reading that a person wouldn’t be able to qualify until they were 30.
MR DEFRANCISCIS: Member, the first point to make about that is that it’s obviously been interpreted as harsh by tribunals before and nevertheless it is the interpretation that must be made, but it’s been thought about before and it’s obviously not resulted in a different outcome. With respect to the way that the New Zealand agreement works, it does allow for New Zealand citizens to [sic] not [sic] hold an Australian permanent visa lawfully residing. It does allow someone who meets that part to accumulate more time than would’ve otherwise been available under the Social Security Act. So, it does allow for I guess an alternative way of meeting ten years, by having this working age residence as an ability to do that. And the definition of Australian resident as it is in the New Zealand, to enable a totalisation, which isn’t available under the Social Security Act. So, while it might not be as open as Mr Mack would like it, it is still an extension which allows a person to meet the residency requirements.
MEMBER:So, really I think what you’re saying it’s more generous, it’s hard [sic] the agreement not come into existence, but still harsh. So, it’s providing scope that wouldn’t otherwise have been there had the agreement not been implemented?
MR DEFRANCISCIS: Sure – – –
MEMBER:It doesn’t make it impossible, it just makes it possible within the scope of what the agreement allows?
MR DEFRANCISCIS: That’s right, Member, I wouldn’t use the word ‘harsh’ obviously other tribunals have and that may be the phrase that is used, but it’s not something we would submit. We’re just saying that it is an option and it’s not as open as obviously Mr Mack would like. I just wanted to address the submission with respect to a person not being able to qualify under the age of 30.
MEMBER:                 Thank you.
MR DEFRANCISCIS: And obviously, the main point that we would make about this is, working age residence is explicitly defined, like our submission with respect for the purposes of the agreement terms. The working age residence definition must serve a purpose, it has to be interpreted as 20 years and that’s when it can apply. There may be situations I think where – sorry, I’m trying to do maths here – where someone can’t qualify until they’re 30, but I mean at least in Mr Mack’s case, what we can see now is he’s still in Australia and therefore he’s approximately six months away from having ten years of residency in Australia.
MEMBER:                 Yes.
…
MS THOMAS: … I guess our submissions really relate that it wouldn’t be a requirement that he’d need to satisfy (1) and (2) of paragraph (e) of section 94. And that this agreement that, you know, working age residences operate to in the agreement to provide an extension to the Act, kind of in some ways supports the notion that we are requesting the tribunal to consider, in the sense that, the agreement does exist to extend the operation of the Act in relation to New – – –
MEMBER:                 Is it still article 2(1) that you’re really basing that on, Ms Thomas?
MS THOMAS: Yes, and the intention of the agreement in its entirety, just because if that was the case then it confuses me how they would – because the articles in the agreement also refer to the qualification under the Social Security Act. So, we obviously support the notion that I don’t think that the agreement replaces the Act in the sense of qualifications for a disability support pension.
MEMBER:No, but I do believe you are saying that the definition of resident in the agreement replaces the definition of resident in the Act if a person doesn’t satisfy the definition of resident in the Act.
MS THOMAS:            Well, I wouldn’t use the phrase ‘replaces’ but definitely rely on the fact that it provides that extended definition.
MEMBER: Well, see, if you use the word ‘extended’ then we really don’t come up to dispute, I guess the interpretation that Mr Defranciscis’s [sic] sees fit because to extend it would be that it applies in the way that the secretary says it does, and then operates in the way that the secretary says it does. I think what you’re really saying in substance is that it replaces it but the word ‘extended’ seems to be more in accordance with the article 2(1), which to me still does say what it reads as saying, that it applies to any legislation et cetera, et cetera, in relation to disability support pension. And I don’t think Mr Defranciscis is saying it doesn’t apply, just the way it applies is different in his mind as it is in your mind.
MS THOMAS:            Yes, sure, that’s correct.
MEMBER:I am still struggling to use the [sic] ‘extend’ the definition, I’m reading article 2(1), I’m still struggling to understand how that extends the definition and just take away what the word ‘extend’ means in a general sense, but it extends it in the way that you say it does, in that, if someone doesn’t satisfy the definition of residence under the Act, then that’s okay if they satisfy it under the agreement.
Because [sic] that definition can essentially step in and fill the gap, which to me is [not] an extension, it’s a replacement,
or substitution.
MS THOMAS:            Yes, no, then in that case I agree with what you’re saying in the wording.
MEMBER:                 So, would you still maintain the same argument in that case?
MS THOMAS:            Yes.
MEMBER:                 But still follow through?
MS THOMAS:            Yes.
MEMBER:                 Can I ask how it does, I’m just trying to map it though [sic]...
MS THOMAS: I think my only point in relation to article 2 is that it does provide the legislation in the Act is only impacted by way of the payments listed in the legislative scope of the agreement. And in that sense that disability support pension is one of those benefits that is taken into consideration. But our primary argument still is around the fact that Australian residence is defined under article 5, and that our interpretation of that definition is that it also includes a New Zealand citizen, who is not the holder of an Australian permit visa, but lawfully residing in Australia on a Special Category visa, which Mr Mack is.
…
(Emphasis added.)

In closing Mr Defranciscis reminded the Tribunal that the Australian resident definition is used throughout the Agreement, in the context of accumulating time, so, for example (transcript, page 21 [20]):
(a)in art 5(5) working age residency, refers to that Australian resident definition; and
(b)in art 12 of the Agreement, where it is referring to a period of time as opposed to someone being an Australian resident.
In turn, Ms Thomas, by way of closing submissions, urged the Tribunal to consider that the intention of the Agreement and its operation, was to consider the qualification for someone who is on a SCV and lawfully residing in Australia on that visa, to be able to meet the definition of residence, under which if the Tribunal was satisfied that that was possible,
Mr Mack would then meet the residency criteria under the definition of Australian resident under the Agreement, for the purposes of s 94(1)(e)(i) of the Act.
CONSIDERATION
There are two ways in which Mr Mack could qualify for DSP, either under the Act or under the Agreement. Further, and for the reasons stated in paragraph [31] above, Mr Mack will only qualify for DSP if he satisfies the residency requirements in either the Act or the Agreement.
It is clear from the parties’ submissions that they agree on a number of matters relating to s 94(1)(e) of the Act. These matters are (and for completeness, the Tribunal also finds on the evidence):
(a)Mr Mack does not have 10 years qualifying Australian residence, or a qualifying residence exemption for DSP. Therefore, Mr Mack fails to satisfy s 94(1)(e)(ii) of the Act.
(b)Mr Mack is not the dependent child of Australian resident, having migrated to Australia with both of his parents in March 2011. Therefore, Mr Mack does not satisfy s 94(1)(e)(iii) of the Act.
(c)In order to satisfy s94(1)(e) of the Act, Mr Mack must meet the criteria in s 94(1)(e)(i) of the Act, which, among other things, requires him to be an Australian resident.
(d)Mr Mack does not meet the definition of Australian resident in s 7(2) of the Act.
(e)Mr Mack cannot satisfy the working age residence requirements, for the purposes of totalising under the Agreement, in order to qualify for DSP.[15]
[15] See A3, paragraph 57. While in his written SFICs, Mr Mack says it is unnecessary to consider whether he satisfied the working age residence requirements in the Agreement given he satisfied s 94(1)(e)(i) of the Act at the date of claim, it is clear from Ms Thomas’ broader submissions at hearing that Mr Mack concedes he falls short of these requirements. Refer to R3, paragraph 13 cf transcript pages 6 [20], 8 [35], 9 [15].
The matter raised at paragraph [48(c)] above, that Mr Mack fails to satisfy s 94(1)(e)(i) of the Act on the basis that he fails to meet the definition of Australian resident in s 7(2) of the Act, is the point at which the parties’ positions diverge:
(a)According to the Secretary, the fact that Mr Mack does not meet the definition of Australian resident in s 7(2) of the Act gives the result that, in turn:
(i)he fails to satisfy s 94(1)(e)(i) of the Act; and,
(ii)given the qualification requirements in s 94(1)(a) to s 94(1)(e) (inclusive) are cumulative, his claim for DSP lodged on 15 October 2019 fails.
(b)
Mr Mack, however, is of the view that his failure to meet the definition of

Australian resident
in s 7(2) of the Act leaves open to him the avenue of satisfying

s 94(1)(e)(i) of the Act by way of meeting the definition of Australian resident in

art 5(1) of the Agreement. This is because, in Mr Mack’s view, the definition of Australian resident in art 5(1) of the Agreement is an ‘extension’ (transcript, page 15 [30]) (albeit, in substance, a substitution)[16] of the phrase as defined in s 7(2) of the Act and, in light of art 2(1) of the Agreement, may be applied to satisfy s 94(1)(e)(i) in the same way.
[16] Transcript, page 18 [5]-[20].
The parties’ divergent positions at paragraph [49] above brings the Tribunal to its consideration of the parties’ respective arguments regarding the interaction between the Act and the Agreement.
The Secretary accepts that Mr Mack is an Australian resident for the purposes of the Agreement, that being, the key wording in art 5(1) and that purpose being (refer to paragraphs [39] and [40] above):
(a)for use within the Agreement;
(b)in reference to a person who is residing in Australia; and
(c)in the context of the accumulation of time as an Australian resident for the purpose of meeting any minimum qualifying periods.[17]
[17] At hearing, the Secretary noted that the Australian resident definition in art 5(1) of the Agreement is used throughout the Agreement and it is used in the context of accumulating time, so for example, in art 5(5) working age residents, refers to that Australian resident definition. And again, it is referred to in art 12,
Ms Thomas, however, maintains reliance ought to be placed on the provision in art 2(1) of the Agreement that the Agreement shall apply to the Act, being an Act forming part of Australian social security law in so far as it provides for DSP. Ms Thomas says that this is the basis upon which the definition of an Australian resident in art 5(1) of the Agreement can be applied to the Act. Ms Thomas submitted that the decision makers in

the Stretch decision and the Pillai decision share her view that the intention of the Agreement was not to exclude or limit people such as Mr Mack who is a New Zealand citizen, does not hold a Australian permanent visa and lawfully resides in Australia on a SCV (refer to paragraph [42] above).
Paragraphs [12] and [13] of the Stretch decision provides the following in relation to eligibility for DSP:
[12]The respondent is a New Zealand citizen who arrived in Australia on
25 December 2004. She remains in Australia under a visa subclass 444, which is neither a permanent visa nor a protected special category visa (“SCV”). The respondent does not qualify as an ‘Australian resident’ under the Act because section 7(2) of the Act defines an ‘Australian resident’ as a person who resides in Australia and who is an Australian citizen or the holder of a permanent visa or a special category visa holder who is a protected SCV holder who was residing in Australia on 26 February 2001. The respondent does not satisfy any of these requirements to be a qualified as an ‘Australian resident’. As the respondent is not an Australian resident she does not meet the residency requirement of section 94(1) (e-ea) of the Act which must be satisfied in order to be qualified to receive DSP. However, New Zealand citizens may qualify for DSP under Schedule 3 of the International Agreements Act.
[13]Article 5(1) of Schedule 3 of the International Agreements Act provides that a New Zealand citizen who is not the holder of an Australian permanent visa but who is lawfully residing in Australia is an Australian resident for the purposes of the Australian social security law.
The respondent is a New Zealand citizen lawfully residing in Australia and therefore is an Australian resident for the purposes of Article 5(1) of Schedule 3 of the International Agreements Act. The respondent will therefore qualify for DSP providing that she satisfies section 94 of the Act with the exception of the residency requirement in section 94(1)(e) of the Act, and Article 2 of Schedule 3 of the International Agreements Act.
(Emphasis added, footnotes omitted).
Mr Mack relies on the first sentence of paragraph [13] of the Stretch decision to support her position. The Secretary relies on the clarification provided in the second sentence of the Stretch decision coupled with the fact that Ms Stretch (as was the case with Mr Pillai) would have had 10 years of residency and the totalising would have been in her favour regardless. Neither case, in the Secretary’s submission, made the applicant an Australian resident

for the purpose of s 7 of the Act
. Ms Thomas expressed her view that this interpretation was ‘very harsh’ and ‘fairly limiting’. The Secretary raised the point that while it may be

‘not as open as Mr Mack would like it’, it does allow someone who meets the working age residence requirements to accumulate more time than would have otherwise been available under the Act (refer to paragraph [44] above).
In light of the matters addressed at paragraphs [47] to [54] above, the Tribunal is unable to accept that the definition of Australian resident in art 5(1) of the Agreement serves to essentially provide an alternative means for an application to fulfil the requirements of

s 94(1)(e)(i) of the Act in circumstances where that applicant fails to meet the definition of that term in s 7(2) of the Act. To do so would, in the Tribunal’s view, wrongly ignore the following:
(a)
The definition of Australian resident in art 5(1) of the Agreement is stated to be

for the purposes of the Agreement
.
(b)
The qualification given to the term Australian resident in the Stretch decision,

being that the applicant is a New Zealand citizen lawfully residing in Australia and therefore is an Australian resident for the purposes of art 5(1) of Schedule 3 of the International Agreement. This, in the Tribunal’s view, is strongly indicative of the scope of the definition of Australian resident in art 5(1) of the Agreement.
(c)The broader purpose of where the term Australian resident is used throughout the Agreement, being in the context of provisions relating to the accumulation of time a New Zealand citizen has been residing in Australia. This is the purpose in which the term is used in the context of the present application.
On the background of the factors the Tribunal has set out at paragraph [55] above,
art 2 of the Agreement logically cannot, and does not, provide the link between
art 5(1) of the Agreement and s 94(1)(e)(i) of the Act that Mr Mack submits it does.
Overall, the Tribunal considers that if the intention of the Agreement was to provide an alternate definition of Australian resident that could be applied as an alternate means of satisfying s 94(1)(e) of the Act in circumstances where an applicant failed to satisfy the definition of that term in s 7(2) of the Act, it would have stated such. Put simply, the term, Australian resident, should be given its ordinary meaning, provided that would best achieve the purpose or object of the Act, whether or not that purpose or object is expressly stated in the Act.[18]
[18] s 15AA Acts Interpretation Act 1901 (Cth).
It follows that the only conclusion for this Tribunal is that Mr Mack does not satisfy the residency requirements for DSP in s 94(1)(e)(i) of the Act (and indeed, s 94(1)(e) of the Act generally) and Mr Mack’s claim for DSP dated 15 October 2019 must fail.

Therefore, as noted at paragraph [32] above, the Tribunal has not considered whether

Mr Mack qualifies for DSP under the Agreement.
CONCLUSION
Mr Mack has failed to meet the requirements of s 94(1)(e) of the Act at the date of his claim for DSP and therefore his application for DSP dated 15 October 2019 must fail.
DECISION
In accordance with s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth),
the reviewable decision dated 6 April 2020 is set aside and substituted with a decision that Mr Mack did not qualify for Disability Support Pension as at the date of claim,
being 15 October 2019.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of
L M Gallagher, Member

...........................[sgd].............................................
Associate
Dated: 8 October 2020

Date of hearing: 15 September 2020

Counsel for the Applicant: Rhea Thomas

Solicitors for the Applicant: Welfare Rights & Advocacy Service

Counsel for the Respondent: Kelvin Defranciscis

Solicitors for the Respondent: Services Australia

The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known,

as the ‘Department of Human Services’.

Article 2(2) of the Agreement provides that New Zealand citizens must be ‘severely disabled’ before they qualify for DSP. A ‘severely disabled’ person is defined in art 1(1)(m) of the Agreement.

Refer further to paragraph [24] below.

A special category visa is a class of temporary visa issued to a person who is, among other things,

a New Zealand citizen and holds a New Zealand passport that is in force (ss 5(1) and 32 of the Migration Act).

where it is referring to a period of time as opposed to someone being an Australian resident (transcript, page 21 [10]-[20]).

Date of hearing:	15 September 2020
Counsel for the Applicant:	Rhea Thomas
Solicitors for the Applicant:	Welfare Rights & Advocacy Service
Counsel for the Respondent:	Kelvin Defranciscis
Solicitors for the Respondent:	Services Australia