McCahill and Secretary, Department of Family and Community Services
[2005] AATA 439
•17 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 439
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/710
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH McCAHILL Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date17 May 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................[Sgd]......................
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – special benefit – relevant time-frame for qualification – New Zealand citizen not qualified under Social Security Act 1991 or Social Security (International Agreements) Act 1999 – not severely disabled - no total inability to work.
Migration Act 1958 s 32
Social Security Act 1991 ss 7, 23, 94, 729, schedule 1B
Social Security (Administration) Act 1991 ss 29, 30, 41, 42, schedule 2Social Security (International Agreements) Act 1999 schedule 3
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; (1979) 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82; (1993) 29 ALD 656Wijeyatilake and Secretary, Department of Family and Community Services [2003] AATA 703
REASONS FOR DECISION
17 May 2005 Mr RG Kenny, Member
Background
1. Elizabeth McCahill (the applicant) is a New Zealand citizen who is living in Australia. She suffers from anxiety disorder. On 12 March 2004, she lodged a claim with Centrelink, a statutory authority within the portfolio of the Department of Family and Community Services (the respondent), for payment of disability support pension. On 8 April 2004, she lodged a claim for special benefit. These are both forms of income support payments made under the Social Security Act 1991 (the Act). On 16 April 2004, a delegate of Centrelink rejected both claims. That decision was affirmed by an authorised review officer on 28 April 2004 and, in turn, by the Social Security Appeals Tribunal on 10 August 2004. On 6 September 2004, Ms McCahill sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Ms McCahill attended the hearing but was not represented. Ms J Dwyer from the Advocacy and Administrative Law Team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
3. At the hearing, the following material was taken into evidence;
§exhibit 1 documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents – T1 to T42)
§exhibit 2 a medical report, dated 10 November 2004, from Dr B Pleash; and
§exhibit 3 extracts from the Guide to Social Security Law.
Issues and Legislation
4. The issue in this matter is whether or not Ms McCahill is qualified to receive the disability support pension or the special benefit. In each case, the respondent’s decision to reject her claim was based upon findings that Ms McCahill did not satisfy the relevant nexus requirements with Australia in accordance with the Act and the Social Security (International Agreements) Act 1999 (the International Agreements Act).
5. For the disability support pension, section 94 of the Act relevantly provides that a person is qualified for disability support pension if the person was an Australian resident when the person first developed an inability to work; or the person has 10 years qualifying Australian residence; or the person has a qualifying residence exemption for a disability support pension.
6. An alternative means of qualifying for the disability support pension is under schedule 3 of the International Agreements Act, article 2 of which makes provision for that payment but also includes qualifying criteria. This includes the requirement that the person must be “severely disabled”.
7. For special benefit, section 729 of the Act relevantly provides that a special benefit may be granted to a person for a period if the person is an Australian resident; or the person becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of that provision.
8. Further, the requirements noted above for disability support pension and special benefit must be met at the time of the initial claim or in the period of thirteen weeks starting immediately after the day on which the claim was made. That is because of the operation of sections 41, 42 and sub-clause 4(1) of schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
Applicant’s Case
9. Ms McCahill was born in New Zealand in 1959 and has lived there for most of her life. Her mother and sister have lived in Australia for more than 20 years. Ms McCahill has travelled to Australia on several occasions and stayed here for varying lengths of time. She was here from 19 December 1983 until 14 September 1986, from 24 May 1987 until 24 August 1988, from 24 May 1994 until 30 June 1994, from 3 December 1997 until 20 December 1997, from 12 August 2003 until 10 September 2003 and from 14 December 2003 until the present time except for a period of about one month when she returned to New Zealand in May/June 2004. On arriving in December 2003, she intended to make Australia her permanent home.
10. When in New Zealand, Ms McCahill was in receipt of a sickness benefit under New Zealand legislation in relation to the anxiety disorder from which she continues to suffer. These benefits continued to be paid to her for three weeks after her arrival in December 2003 and after her return in May 2004. She is in a difficult financial situation in that she has almost no funds at her disposal, has no income and is no longer able to call upon the benevolence of family or friends for continuing assistance. This has impacted on her health because she has not been able to obtain medical treatment or medication.
Consideration
disability support pension
11. The first of the means of meeting the qualifying requirements for disability support pension is by satisfying section 94 of the Act.
12. The term, Australian resident, is defined in sub-section 7(2) of the Act which reads:
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.
13. While Ms McCahill resides in Australia, she is not an Australian citizen. Neither does she have a permanent visa. Rather, she holds a special category visa which is a term that, under the Act, takes its meaning from section 32 of the Migration Act 1958. It is a temporary visa applicable to New Zealand citizens.
14. While she has a special category visa, Ms McCahill is not a protected SCV holder. Pursuant to subsections 7(2A), (2B), (2C) of the Act, in order to be so categorised, she would need to have been in Australia on 26 April 2001; have been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day; or have commenced, or recommenced, to reside in Australia during the period of 3 months beginning on 26 February 2001. Ms McCahill’s periods of stay in Australia are detailed above. These do meet the legislative requirements.
15. As Ms McCahill does not meet the requirements of subsection 7(2) of the Act, I am satisfied that she is not, and has never been, an Australian resident. Alternative means of satisfying section 94 of the Act are achieved if she has 10 years qualifying Australian residence or she has a qualifying residence exemption for a disability support pension. Pursuant to subsection 7(5) of the Act, a pre-condition to having qualifying Australian residence is that the person has been an Australian resident for certain periods in the past. This requirement is not met by Ms McCahill. A qualifying residence exemption requires, in accordance with subsection 7(6AA) of the Act, that the person was a family member of a refugee or holds, or was the former holder, of a visa that is in a class of visas determined by the Minister for the purposes of that provision.
16. It is not disputed that Ms McCahill does not meet the refugee requirement. The classes of visas determined by the Minister for the purposes of subsection 7(6AA) of the Act are set out in paragraph 1.1.Q.35 of the Guide to Social Security Law (the Guide) which is published by the respondent to provide assistance to those who administer the social security law. The Tribunal, whilst not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), may do so and will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645; Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86; and Wijeyatilake and Secretary, Department of Family and Community Services [2003] AATA 703.
17. I am satisfied that there are no cogent reasons for not utilising the material in the Guide in this matter. The forms of visa listed in paragraph 1.1.Q.35 of the Guide are:
subclass 100 - Spouse,
subclass 110 - Interdependency,
subclass 801 - Spouse,
subclass 814 - Interdependency,
subclass 832 - Close ties, and
subclass 833 - Certain unlawful citizens.
18. After noting the various entries on Ms McCahill’s passport, I am satisfied that she does not hold any of those forms of visa.
19. I am satisfied that Ms McCahill does not qualify for the disability support pension under the terms of section 94 of the Act.
20. A further means of meeting the qualifying requirements for disability support pension is by satisfying the terms of schedule 3 of the International Agreements Act. Article 2 thereof includes the requirement that the person must be severely disabled, a term which is defined in paragraph (l) of article 1 of that schedule. It reads:
“severely disabled” means a person who:
(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:
(aa) to work for at least the next 2 years; and
(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(ii) is permanently blind;
21. The medical evidence in this matter comprises reports from Dr B Pleash who has treated Ms McCahill in Australia; from rehabilitation consultant Ms B York; and from Dr R Kalupahana, who saw Ms McCahill in New Zealand in relation to her sickness benefit when Ms McCahill returned to that country in mid 2004.
22. In his report, dated 18 February 2004, Dr Pleash expressed the opinion that her anxiety condition would persist for at least 2 years but also that it would be somewhat improved within that time. In his report, dated 10 November 2004, Dr Pleash referred to his earlier report and wrote that he could not categorically state that Ms McCahill was totally incapable of working for a 2 year period because she may also have benefited from participation in a program of assistance or rehabilitation.
23. Ms York completed a Work Capacity/Participation Assessment Report on Ms McCahill on 30 March 2004. She assessed Ms McCahill’s work capacity as being up to 7 hours per week at that time, with the prospect of improvement to 8-14 hours in 6 months and up to 30 hours per week in 6 months to 2 years.
24. Dr Kalupahana, in his report dated 21 June 2004, wrote that Ms McCahill was not incapable of regularly working for 15 hours per week and also that her capacity would be improved by vocational work or other training.
25. The terms of paragraph (l) of article 1 in the schedule noted above make specific reference to a total inability to work for at least the next 2 years or a total inability to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program. Ms McCahill has significant limitations on her capacity to work and had these at the time of her claim as well as in the 3 month period thereafter. Nevertheless, I am satisfied, on the medical evidence, that her circumstances did not satisfy, during that time-frame, the total inability required in the schedule to the International Agreement Act. It follows that Ms McCahill is not qualified to receive the disability support pension under the terms of that Act.
special benefit
26. The means of meeting the residential requirements for special benefit are set out in section 729 of the Act. This requires that Ms McCahill be an Australian resident or, alternatively, be the holder of a visa that is in a class of visas determined by the Minister for the purposes of that provision.
27. The status of Australian residency relies upon the same provision, noted above, for disability support pension. This is subsection 7(2) of the Act and I have determined that Ms McCahill does not satisfy the requirements of that provision.
28. The classes of visas which have been determined by the Minister for the purposes of section 729 of the Act are set out in paragraph 3.7.1.10 of the Guide. It lists the following classes of visa:
subclass 820 - spouse,
subclass 826 - interdependent,
subclass 309 - offshore spouse,
subclass 310 - offshore interdependent,
subclass 785 - temporary protection,
subclass 786 - humanitarian concerns,
subclass 447 - Secondary Movement (Offshore Entry), and
subclass 451 - Secondary Movement Relocation;
CJSV (9.2.14) - issued specifically for the purpose of assisting in the administration of criminal justice in relation to the offence of people trafficking, sexual servitude or deceptive recruiting,
subclass 695 - return pending, and
subclass 787 - temporary witness protection (trafficking).
29. I am satisfied that those are the classes of visa that have been determined by the Minister for the purposes of section 729 of the Act. I am also satisfied that Ms McCahill has not been the holder of any of those classes of visa. This means that she does not meet the alternative means available under section 729 of the Act for meeting the qualifying criteria for special benefit. It follows that Ms McCahill is not qualified to receive the special benefit under the Act.
30. Quite apart from the matter of whether Ms McCahill meets the qualifying criteria for special benefit, there is also a residential requirement for any person who makes a claim for that form of social security payment. The general rule is set out in subsection 29(1) of the Administration Act which provides that, subject to various provisions including section 30 of the Administration Act, a claim for a social security payment may only be made by a person who is an Australian resident. The term Australian resident has the same meaning as it does under the Act and I have determined that Ms McCahill does not meet the requirements of that term.
31. Section 30 of the Administration Act qualifies the general rule for special benefit. It provides that a claim for special benefit may be made by a person who has a qualifying residence exemption or holds a visa determined by the Minister to be a visa to which the provision applies. Those requirements are also noted above under the Act and they have same meanings as they do in that context (see paragraph 8.1.6 of the Guide). I have determined that Ms McCahill does not meet those requirements.
Decision
32. The Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
AssociateDate of Hearing 13 May 2005
Date of Decision 17 May 2005
The Applicant was unrepresented and appeared in person
For the Respondent Ms J Dwyer
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