McIvor and Secretary, Department of Family and Community Services

[2003] AATA 337

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 337

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/16

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRYAN NEIL McIVOR

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis A.M., (Part-time Member)

Date11 April 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension - period of residence - Canada - Australia - reciprocal agreement - citizenship - passport - entry visa.

Legislation

Social Security Act 1991 – s94(1)

Social Security (International Agreements) Act 1991 (Schedule 4: Reciprocal Agreement on Social Security between the Government of Australia and Government of Canada)

REASONS FOR DECISION

11 April 2003 Associate Professor B W Davis A.M., (Part-time Member)   

The Application

1.      The applicant, Bryan Neil McIvor, seeks review of a decision made by a delegate of the Department of Family and Community Services (DFCS) on 14 November 2001, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 12 December 2002, to reject Mr McIvor’s application for disability support pension (DSP).

The Issues

2.      The issues before the Tribunal are:

(a)whether the applicant resided in Australia for the minimum period of time required by the Reciprocal Agreement on Social Security between the government of Australia and the Government of Canada; and

(b)whether the applicant meets the residence requirements for disability support pension  if the Reciprocal Agreement does not apply.

Decision on the Papers

3.      Both the applicant and respondent have indicated in writing they will accept a decision based on the papers made available to the Tribunal prior to the date of determination.

Background

4.      Mr Bryan McIvor is a Canadian national residing in Canada, who entered Australia on 16 June 1974 and departed Australia on 7 May 1975, having a period of residence of 10 months and 20 days.   On 10 July 2001 he lodged a claim for DSP under the Social Security Agreement between Australia and Canada, claiming he suffered an injury while living in Australia.

5.      On or about 15 December 2001, a delegate of DFCS rejected the applicant’s claim for DSP on the basis that he had insufficient residential time in Australia to qualify for support.   This decision was subsequently reviewed an affirmed by DFCS; Mr McIvor then appealed to the SSAT which on 12 December 2002 also affirmed the decision.

6.      The Department claimed that Mr McIvor arrived on a temporary visitor’s visa (class B), but he disputed this suggestion, stating he acquired a permanent residence visa in Sydney in 1975.   He also claimed his passport was later stolen in the United States and although there was an active search by Interpol, the Royal Canadian Mounted Police and media inquiries it was not found.   He further stated he had encountered economic hardship and considerable physical disability because of an injury suffered in Townsville in 1974 and considered he was entitled to disability support.

7.      The SSAT noted this and all other evidence before concluding the decision under review should be affirmed.   The Tribunal noted that DSP can only be paid to people who reside in Australia for a minimum period of two years and a person cannot be regarded as an Australian resident unless, as a first step, they are an Australian citizen or hold a permanent resident visa.   Mr McIvor claimed he met the latter requirement, but was unable to provide Centrelink with any confirming evidence.

Application of the Law

8. Provisions relating to payment of Australian pensions to people residing in Canada are set out in Schedule 4 of the Social Security (International Agreements) Act 1999, entitled “Reciprocal Agreement on Social Security between the Government of Australia and the Government of Canada”.

9.      If a “minimum period” of Australian residence is met, the agreement allows periods of Australian residence and Canadian residence to be totalised for purposes of qualification for an Australian pension (see Section 1 of Article 6 of the Agreement).

10.     The “minimum period” of residence in Australia for a person residing outside Australia in regard to an invalid pension (now known as Disability Support Pension) is two years of which six months must be continuous (s6(a)(ii) of Article 6 of the Agreement).

11. Qualifications for DSP are found in s94(1) of the Social Security Act 1991. (“the SS Act”) This requires that a person must either:

·     Be an Australian resident at the time when the person first had a continuing inability to work.

·     Had 10 years qualifying Australian residence.

·     Have a qualifying residence exemption for Disability Support Pension; or

·     Is born outside Australia and is a dependent of an Australian citizen and becomes an Australian resident while a dependent child of an Australian resident.

12.     To be an “Australian resident” a person must reside in Australia and be either an Australian citizen, holder of a permanent visa or a special category visa (s72(2) of the SS Act.

Analysis

13.     The Tribunal is required to stand in the shoes of the decision-maker, consider all evidence anew, but be bound by statutory provisions and any significant judicial decisions.

14.     In Mr McIvor’s case the first matter to be determined is whether he resided in Australia for the minimum period of time required by the Reciprocal Agreement on social security between the government of Australia and the government of Canada (hereafter referred to as “Reciprocal Agreement”).   That period is two years of which six months must be continuous. 

15.     Records indicate Mr McIvor entered Australia on 16 June 1974 and departed on 7 May 1975, giving a period of residence of 10 months and 20 days.    The applicant currently resides in Canada and there is no further evidence of other periods in Australia.   Mr McIvor himself says that he resided in Australia from June 1974 to March 1975, thus it is clear he does not meet the minimum time period of residence required under s6 of the Reciprocal Agreement.

16. The next matter to be decided is whether Mr McIvor meets the residence requirements for DSP under any other provisions, but primarily in respect of s94(1) of the SS Act.

17.     Here the applicant claims he was granted a permanent residence visa in Sydney in 1975, but his passport was stolen so there is no record now.   The SSAT noted some correspondence with Canadian authorities, but also drew attention to a letter from the Department of Immigration dated 16 October 2002 which stated “… the visa category has not been recorded.   During this time (1974-75) most temporary entrants did not require a visa and rarely were they recorded anyway.   No record of visa grant during his stay is recorded”.

18.     The Tribunal is unable to determine whether Mr McIvor’s claim he was granted a permanent resident visa is correct or not, but it seems unlikely he would be granted this status in 1975, after a period in Australia, without any official record being made.   Mr McIvor did provide a statutory declaration made in Canada, but this merely repeats his initial claim without any supplementary information confirming his passport was stolen or other aspects of the case.   A Canadian parliamentarian wrote a letter of support, but this is largely about Mr McIvor’s injury and medical problem.

19. Having taken all evidence into account and on the balance of probabilities the Tribunal finds that Bryan Neil McIvor does not meet the provisions of s94(1) of the SS Act and is therefore not entitled to receive an Australian Disability Support Pension.

Decision

20.     The decision under review is affirmed.

I certify that the 20 receding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis A.M., (Part-time Member)

Signed: KL Miller (Administrative Assistant)

Date/s of Hearing  Matter decided on the papers.
Date of Decision  11 April 2003