Markovic; Secretary, Department of Family and Community Services - [2002] AATA 908

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 908

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/200

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    MLADEN MARKOVIC
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date24 September 2002
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Newstart Allowance - whether respondent satisfied activity test – if claim for Newstart Allowance was properly rejected – whether respondent had sufficient reason for moving to Coober Pedy – definition of "family member" – whether respondent reduced employment prospects
Social Security Act 1991 sections 23, 593 , 601, 634

REASONS FOR ORAL DECISION

24 September 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 27 April 2001, which set aside the decision of a delegate of 6 February 2001, as affirmed by an Authorised Review Officer on 19 March 2001, and substituted a decision that the respondent had sufficient reason for moving from Perth to Coober Pedy, and satisfied the Activity Test.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the parties. Ms Pugsley represented the applicant (the Department). The respondent, who was represented by Mr Roberts, gave oral evidence.
The respondent who is 53 years of age was born in Bosnia, and as a member of a close-knit family grew up some 150 yards from his two male first cousins. He migrated to Australia in 1970 with his wife, Slavica. He was 21 years old. His cousins migrated also to Australia, and have lived for many years at Coober Pedy. The respondent is now an Australian citizen. He worked for 30 years in the construction industry in Western Australia, and suffered a back injury in 1987. He subsequently resumed work on light duties for the next 7 years, until 1995, when the State Government owned enterprise closed down. He and his wife had a pizza bar for 3 to 4 years, and he then found casual employment. His last employment ceased on 21 December 2000 at Tom's Crane & Plant Hire Company. An employment separation certificate completed by his employer indicated the reason for his termination was "shortage of work or redundancy".
The respondent and his wife visited Coober Pedy in early 2001. They saw his cousins and friend, Mr Capelj, who had previously lived in Perth. Mr Capelj had opened an opal shop in Coober Pedy, and asked the respondent to become his partner and to open a lunch bar adjoining the shop, which the respondent was to run with his wife. Mr Capelj said that when the business was established they would decide about the contribution that the respondent and his wife would need to make to the business. The respondent spoke to his two cousins about the business proposal, and they agreed to look after him and his wife if the business was not successful. The respondent made inquiries, and although he had some doubts about the business proposal, he knew he could not continue to work in heavy industry, and decided to accept the proposal. He also thought the climate would be better for his wife's and his own health.
The respondent and his wife returned to Perth, and as he continued to have some doubts about the business proposal, he decided to approach Centrelink on 15 January 2001, about Newstart allowance, in case the business did not work out. The respondent said in evidence that this was his first contact with Centrelink in the 30 years he had been in Australia. He had an interview with an officer on 25 January 2001. He stated at the time that he would not accept any jobs, or look for any jobs while he was in Perth, as he was leaving to go to Coober Pedy later in the week. His application for Newstart Allowance was refused on the basis that he did not satisfy the activity test. He and his wife moved to Coober Pedy on 2 February 2001.
Centrelink provided the respondent with a "Moving to a New Location" form which he completed on 8 February 2001. Question 6 reads:
"What are your reasons for moving?
Please tick which one(s) are relevant to your circumstances.
(Evidence must be provided)"

The respondent marked the boxes indicating "To take up an offer of employment" and "To live with or near an immediate family member".

On 6 February 2001, a delegate decided to impose a non-payment period of 26 weeks, as it was determined that the respondent had reduced his employment prospects by moving from Perth to Coober Pedy. This decision was affirmed by an Authorised Review Officer on 19 March 2001.
The respondent said in evidence that when he arrived in Coober Pedy, Mr Capelj informed him that business would thrive in the cooler Easter period. The respondent's wife worked for several weeks in the shop, and Mr Capelj subsequently requested payment of $20,000 towards the business. The respondent said that he did not have much money to invest, and he and his wife had concerns about the poor location of the proposed business and lack of customers. They invested about $3,500, and when the opal shop business did not improve by Easter 2001, the respondent decided not to enter into the partnership, and began to look for other work. Although he had been unable to find employment, they decided to stay in Coober Pedy, as the climate was beneficial for the respondent's back problem, and his wife who had undergone, in 1999, a discectomy at L4-L5 level.
On 27 April 2001 the SSAT decided to set aside the Authorised Review Officer's decision, and substituted a decision that the respondent had sufficient reason for moving from Perth to Coober Pedy, and satisfied the activity test. The SSAT was satisfied that the respondent moved to take up a job prospect that did not work out, and was of the view that "that in itself was sufficient reason for Mr Markovic's move to Coober Pedy and subsequently to be entitled to the appropriate Centrelink benefits". The SSAT was also satisfied that the nature of the respondent's relationships with his cousins, coupled with the cultural connections he shared in the community, satisfied the definition of "family member" under section 23(14)(c) of the Social Security Act 1991 (the Act). The SSAT took into account also, the respondent's health problems, and the downturn being experienced in Perth in the construction industry. All these reasons satisfied the SSAT that the respondent had sufficient reason for moving from Perth to Coober Pedy.
Section 601(1) of the Act provides:
601(1) Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a)       actively seeking; and
(b)       willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
Note 1:     For situations in which a person is not required to satisfy the activity test see:
(a)       section 602 (certain persons over 50);
(b)       section 603 (persons attending training camps in remote areas);
(c)       section 603A (special circumstances).
Note 2:     See subsections (2A) and (2B) on what paid work is unsuitable."
Sections 634(1) and (3) of the Act provide:
"634(1)Subject to subsections (1B) and (2), if, in the opinion of the Secretary, a person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason, a newstart allowance is not payable to the person for 26 weeks.
…
634(3)For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person:
(a)moves to live with a family member who has already established his or her residence in that place of residence; or
(b)moves to live near a family member who has already established residence in the same area; or
(c)satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member; or
(d)satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example, the person had been subjected to domestic or family violence in the original place of residence).
Note: For family member see subsection 23(1)."
Section 23(14) of the Act provides:
"23(14) For the purposes of this Act other than Part 2.11 and the Youth Allowance Rate Calculator in section 1067G, each of the following is a family member in relation to a person (the relevant person):
(a)       the partner, father or mother of the relevant person;
(b)       a sister, brother or child of the relevant person;
(c)       any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person's relations described in paragraph (a) or (b)".
The Department contends that the respondent was not exempt from the application of the activity test; that he was not actively seeking, nor was he willing to undertake, paid work during the relevant period. Accordingly, he did not satisfy the activity test and was therefore not qualified for Newstart Allowance. The claim for Newstart Allowance was correctly rejected. The Department maintains also that at the time the respondent moved from Perth to Coober Pedy, the unemployment rate in Perth was 5.7%, and there was a labour force of 728,900. At the same time the unemployment rate in Coober Pedy was 12%, and the labour force was 1,077. The job availability in Coober Pedy was minimal. The Department contends also, that the respondent reduced his employment prospects by moving from Perth to Coober Pedy, and that the SSAT was in error in finding otherwise. The Department refers also to the policy set out in paragraph 3.2.1.35 of the Guide to the Social Security Law, and contends that the respondent did not have any firm offers of employment which would justify his move to Coober Pedy, and that prima facie Newstart Allowance was not payable to him for 26 weeks, unless his move to Coober Pedy was for sufficient reason.
The Department submits that none of the criteria set out in section 634(3) of the Act apply to the respondent's circumstances, and that the SSAT erred in finding that he satisfied paragraph 634(3)(b) of the Act. The respondent's only relatives in Coober Pedy were two cousins and they are not "family members" as defined by paragraph 23(14)(a) or (b) of the Act. The Department contends further, that the respondent's cousins should not be treated as family members as provided for in paragraph 23(14)(c) of the Act. While accepting a close relationship, they are not family members for the purposes of the Act.
The Department contends finally, that the SSAT was in error in finding that paragraph 634(3)(c) of the Act was satisfied, as the respondent has not provided any evidence that supports the finding that the move to Coober Pedy was necessary for the purposes of treating or alleviating a physical disease or illness suffered by him or a family member. Even if that were the case, their conditions have improved, it must be necessary for the move to be made to the particular area.
The respondent submits that the SSAT did not err in finding that he had a sufficient reason for moving from Perth to Coober Pedy. His health problems, associated with a lifetime of heavy work in the construction industry, caused him to suffer from severe back problems, and due to these problems he was unable to continue in his previous employment. Due to these health problems, and the downturn experienced in the construction industry, his job prospects in Perth were extremely low. He had come to the end of his working life. Therefore, he did not significantly reduce his employment opportunities by moving to Coober Pedy. He moved to Coober Pedy for several reasons; to undertake paid employment, to be near his cousins, and to improve both his and his wife's health. Both his health and his wife's health is improving due to the warmer, drier climate. His main reason for moving to Coober Pedy, however, was that he and his wife could take up a business opportunity. After this did not eventuate, he actively sought employment of various types. His cousins have established their residence in Coober Pedy for some years. One of the reasons the respondent moved to Coober Pedy was to live near his cousins, who also offered him support should his business venture not work out. Under section 634(3) of the Act he had sufficient reason for moving to Coober Pedy, and therefore satisfied 634(1) of the Act.
In my view the respondent gave his evidence in a concise and forthright manner. I accept his evidence that he moved to Coober Pedy to take up an offer of partnership or employment, with the guarantee of support from his family members, his cousins. This support has in fact been provided by them, as the business venture was not proceeded with. I accept his evidence that he has continued to seek employment. I agree with the SSAT's reasoning that as an element of the move to Coober Pedy, the respondent moved to live near his family members, and that he had sufficient reason for moving to a new place of residence.
I am satisfied on the evidence, and find as a fact, that the respondent had a sufficient reason for moving to a new place of residence. For these reasons the Tribunal affirms the decision under review.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Dates of Hearing  20 & 24 September 2002
Date of Decision  24 September 2002
Counsel for the Applicant        Ms A Pugsley
Solicitor for the Applicant         Centrelink Admin Law Team
Counsel for the Respondent    Mr C Roberts
Solicitor for the Respondent    Welfare Rights