Matara and Secretary, Department of Family and Community Services

[2002] AATA 1294

DECISION AND REASONS FOR DECISION [2002] AATA 1294

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/944

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

DECISION

Tribunal       Ms N Isenberg, Member   

Date13 December 2002

PlaceSydney

Decision      The Administrative Appeals Tribunal affirms the decision under review.    

[SGD] Ms N Isenberg
  Member
CATCHWORDS
SOCIAL SECURITY – special benefit – newly arrived resident's waiting period – Applicant arrived in Australia with inadequate funds for two years – Applicant claims that he came to Australia because an uncle had told him that he could get  the Applicant a job -  No evidence to corroborate the Applicant's claim about the job - Applicant's basic needs being met by relatives – no substantial change in circumstances beyond the Applicant's control – special benefit not payable

LEGISLATION
Social Security Act 1991 - sections 729 and 739A

CASE LAW
Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481; (1998) 89 FCR 151
Re Secretary, Department of Social Security and Singh and Kaur (AAT 12702, 12 March 1998)
Re Sarkar and Secretary, Department of Family and Community Services [2000] AATA 644

REASONS FOR DECISION

13 December 2002 Ms N Isenberg, Member   
DECISION UNDER REVIEW

1. The decision under review before the Administrative Appeals Tribunals ("the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 21 December 2001 (T7) as affirmed by the Authorised Review Officer on 25 February 2002 (T11 ) and the Social Security Appeals Tribunal ("the SSAT") on 29 May 2002 (T2), to refuse to pay the Applicant special benefit.
   BACKGROUND

2. On 8 December 2000 the Applicant arrived in Australia from the Cook Islands on a New Zealand passport.  On 15 December 2001 he applied for special benefit.
   ISSUES BEFORE THE TRIBUNAL

3. The issues are:

   (a)Whether the Applicant's claim for special benefit was correctly rejected.

   (b) Whether the Applicant is subject to the two year waiting period for newly arrived New Zealand citizens.
   (c) Whether the Applicant has suffered a 'substantial change in circumstances beyond his control', which would warrant the exercise of the discretion conferred by section 739A(7) of the Social Security Act 1991 ("the Act") to waive the waiting period.

APPEARANCES

1. A hearing was held before the Tribunal on 6 November 2002 at which the Applicant appeared without representation by conference telephone, with the assistance of Mr Tutu Monikura, accredited interpreter in the Cook Islands Maori language.  The Respondent was represented by Cheryl Collis, an advocate from the Advocacy and Administrative Law Team at Centrelink.
   LEGISLATION

2. The relevant legislation in this matter is the Social Security Act 1991 in particular sections 729 and 739A. Those sections, so far as is relevant, provides as follows:

   "729 Qualification for special benefit

   729(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.

   Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

   729(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

   (a) no social security pension is payable to the person during the period; and

   (b) no other social security benefit is payable to the person for the period; and

   …

   (e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and

   (f)       the person:

   (i)       is an Australian resident; or
   …

   (v)is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph and

   …"

   "739A Newly arrived resident's waiting period

   739A(1)Subject to this section, a person who, on or after the commencement of this subsection:

   (a)      enters Australia; or
   (b)      becomes the holder of a permanent visa; or

   (e) becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;

   is subject to a newly arrived resident's waiting period.

   ….

   739A(7) Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.

   Note: For permanent visa see subsection 7(1)."

EVIDENCE: Documents

1. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.  In addition, it took into evidence the Respondent's Statement of Facts and Contentions as Exhibit R1.
   EVIDENCE and SUBMISSIONs: the Applicant

2. The Applicant gave evidence and was cross-examined on behalf of the Respondent.  Questions were also put to the Applicant by the Tribunal.

3. The Applicant said that he had a pearl diving business in the Cook Islands.  He had been working at it for five years.  The nature of the business is that it takes  two years to make any money and each harvest he might make only $1000-$2000, 'small earnings'. 

4. The Applicant said his uncle (by marriage), Mark Ford telephoned him in the Cook Islands and told him that he 'was certain' he could get him a job on the railway, based in Cairns.  The type of job was not specified.  Mr Ford himself worked on the railway at that time, but was not in a recruitment position.

5. When the Applicant arrived in Australia, he was told that there was no work on the railway line.  Mr Ford then tried to find him another job, without success.

6. The Applicant was living in Cairns with an aunt but sometime this year moved to Sydney to live with another aunt.

7. Since coming to Sydney he has applied for a job at an insulation factory in Windsor, and for other jobs which he cannot now recall.

8. In cross-examination his attention was invited to various requests by Centrelink to provide a statement from Mr Ford about the job offer.  The Applicant agreed that none had been provided.  He said he told Centrelink in Cairns about the job offer.  He had asked Mr Ford to provide a letter but he has not done so.  The Applicant suggested that perhaps Mr Ford is too busy.  He said he tried to follow up once but there was no answer.  His last contact with Mr Ford was sometime this year.  Mr Ford himself is no longer working with the railway.

9. The Applicant was asked if he had made enquiries while in the Cook Islands with officials of the Australia government or other authorities. The Applicant confirmed that he had not, and  said that he cannot remember why he did not do so.

10. He said he did not think about how he would support himself if the job did not eventuate.  He agreed that he had come to Australia with only $300 in savings and really believed his uncle would look after him.  In fact his uncle, Mr Ford, had provided no money to him, because he also has lost his job.  His aunt in Sydney has provided food and accommodation.  He can 'survive', but it is not enough.

11. He has not tried to obtain employment in his profession as a pearl diver, and does not know where to look for a job like that.  He does not think there are many divers jobs at all.

12. His uncle did not tell him that there was a two year waiting period before he could go onto benefits.  He made no enquiries of his other relatives in Australia either.

13. The Applicant said he was not healthy.  He has 'common flu', an occasional toothache and has something wrong with his leg that might be gout.  He has not seen a doctor or a dentist.
    SUBMISSIONS: Respondent

14. The advocate for the Respondent submitted that it was extraordinary, that on the strength of a discussion with his uncle, the Applicant came to Australia, without checking with anyone else about job prospects in Australia.  Centrelink had on a number of occasions requested that the Applicant provide a letter or other evidence from the Queensland Railways or from Mark Ford to support the Applicant's claim that he was offered a job.  To date, no documentation has been supplied. (T6, T7 & T12). 

15. If it is accepted that the Applicant had expected to have a job on his arrival in Australia, it merely indicates at best, that he had a mere 'hope or belief' that he could get work - certainly nothing concrete nor guaranteed.

16. The Tribunal was referred to the Full Federal Court decision in Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481, where Mansfield J stated at p 492:

    "The intention of the amending Act in introducing the newly arrived resident's waiting period is clear enough. It does not require paraphrasing. Section 739A(7) is intended to relieve a person recently arrived into Australia from the consequences of the application of that waiting period in certain circumstances. … It presupposes a newly arrived person in Australia is in sufficiently needy circumstances as to otherwise qualify, in the case of other Australian residents, for some form of benefit under the Act. It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period. Thus the change in circumstances cannot be the need itself for the benefit under the Act, as the possible existence of that need underlies the legislative policy that, for two years it should not be met by benefits payable under the Act."

1. The Respondent contended that the view expressed in Secara (supra) above should be adopted in the present case.  It appears that the Applicant left his employment as a diver in the Cook Islands, arriving in Australia with no more than $300 in savings (T4/13).  It was submitted therefore, that the decision to leave regular employment with so little in savings was extremely rash, $300 obviously being woefully inadequate to support him for the two year waiting period.  The need for income support once he arrived in Australia, cannot therefore be regarded as a change in his circumstances for the purposes of waiving the two year waiting period.

2. The Applicant is 22 years of age, and had told the SSAT that he is generally in good health, and currently living in Sydney with an aunt and uncle who provide shelter, food and accommodation. Therefore, the Applicant's basic needs are met and consequently, he is not in such severe hardship sufficient to evoke the discretion in section 739A(7) of the Act.

3. Furthermore, it has now been almost two years since the Applicant arrived in Australia, and despite having no income support, has managed to ride out the waiting period with assistance from his extended family in Australia.  As the  two year period  ended early in December 2002, the Applicant is now eligible to apply for Government assistance.
   FINDINGS

4. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

5. "Special benefit' has been described as a payment of last resort under the Act made to people who are otherwise ineligible for a pension: Secretary, Department of Social Security v Secaraand Others (1998) 89 FCR 151 at 153. It is only payable where the person is unable to earn a sufficient livelihood because of age, physical or mental disability or domestic circumstances or for any other reason pursuant to section 729(2)(e) of the Act.

6. A newly arrived resident must wait for a period of two years before being eligible for special benefit.  Where, however if the person has suffered a substantial change in circumstances beyond his or her control the waiting period may be waived.

7. The Tribunal then turned to consider if the Applicant had suffered a substantial change in his circumstances.

8. While the Applicant had described his income from his business in the Cook Islands as 'small earnings', there was no evidence that he was not able to live on this amount.  Since coming to Australia he has been supported by a succession of relatives. 

9. The Applicant left his employment as a diver in the Cook Islands, arriving in Australia with about $300.  In Re Secretary, Department of Social Security and Singh and Kaur (AAT 12702, 12 March 1998), the respondents also had minimal funds by the time of their entry into Australia.  The Tribunal in that case acknowledged that the family was in extreme hardship, but held that there had been no change of circumstances beyond their control:

   "50. …They were provided with totally inadequate information and they were ill-prepared for what they faced in Australia. Their migration plans were doomed at the outset by their lack of resources, and compounded by lack of up-to-date information as to the employment situation and the cost of living in Australia. However, this does not constitute a change in circumstances; …"

1. Applying the reasoning in Singh and Kaur (supra), and in Secara (supra), the Tribunal found that the Applicant had acted without proper and adequate investigation in coming to Australia, and bringing with him a woefully small amount of funds in the hope that an uncle was going to arrange a job for him.  There was no evidence before the Tribunal that he had in fact been offered a job which then did not eventuate, unlike in ReSarkar and Secretary, Department of Family and Community Services [2000] AATA 644. He did not check with anyone else about job prospects in Australia, and even today has little idea about jobs in Australia in his long-standing profession of pearl diving, or even diving in general. He brought minimal funds with him which, by any reckoning, were unlikely to be adequate to last even until the first payday if the job had in fact eventuated.

2. The Tribunal observes that the harsh reality is that the introduction of section 739A of the Act is the deliberate expression of Parliamentary intention that a new arrival to this country will not be a burden on the public purse, unless there is some substantial change in his circumstances beyond his control, which would warrant the making of an exception to the general rule.

3. It was never the intention of Parliament that the exception should extend to a new arrival,  who finds himself in impecunious circumstances purely as a result of his own lack of forethought.

4. The Tribunal has found in this case that there is no substantial change in the Applicant's circumstances beyond his control.  Hence special benefit is not payable to him.
   DECISION

5. The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:  H Sim       .....................................................................................
  Associate

Date of Hearing  6 November 2002
Date of Decision  13 December 2002
Representative for the Applicant        Self
Advocate for the Respondent             Cheryl Collis