Mohamed and Secretary, Department of Family and Community Services

[2004] AATA 856

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 856

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/549

GENERAL ADMINISTRATIVE DIVISION		)
Re		IFTU MOHAMED

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date17 August 2004

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Dr J D Campbell   Member

CATCHWORDS

SOCIAL SECURITY - Special Benefit - refuge - New Zealand citizen - domestic violence in New Zealand - Australian resident – the decision under review is affirmed.

Social Security Act 1991- sections 729(1), 729(2(f) and 7(2)

REASONS FOR DECISION

17 August 2004   Dr J D Campbell, Member

1. In this application, Ms Iftu Mohamed (“the Applicant”) seeks a payment of a special benefit pursuant to section 729 of the Social Security Act 1991 (“the Act”).

2.      Ms Mohamed lodged a claim for special benefit on 3 February 2004 stating that she was forced to leave New Zealand because of severe domestic violence and death threats from her partner, which led her to becoming depressed and ill (T10, T11). This claim was considered and rejected by the Department of Family and Community Services (“the Respondent”) on 4 February 2004, because the Applicant was not living in Australia on a permanent basis (T14).

3. Ms Mohamed sought a review of this decision on 10 February 2004 stating that she was unable to return to New Zealand because of domestic violence and death threats; that she had cut all ties with New Zealand and that she wished to establish a life in Australia for herself and her two children (T15, T16). The Respondent in affirming the earlier decision of 4 February informed the Applicant on 25 February 2004 (T18), that the reason for so doing was that the Applicant did not have an Australian permanent resident visa, that she arrived in Australia as a holder of a New Zealand passport on 15 July 2003 and that the Applicant did not fall within the special protection provisions for New Zealanders affected by changes to the Act which had effect on 26 February 2001 (T18).

4.      Ms Mohamed lodged an appeal with the Social Security Appeals Tribunal (“SSAT”) on 8 March 2004. On 5 April 2004 the SSAT affirmed the primary decision of 4 February 2004 and in so doing stated that the Applicant did not satisfy the residence requirements for special benefits (T2).

5.      The SSAT, in that decision of 5 April 2004, attached a suggestion that the Respondent consider granting special benefit to Ms Mohamed under an Act of Grace Payment pursuant to the Financial Management and Accountability Act 1997. The Tribunal notes that the Welfare Rights Centre had already initiated such an action on 30 March 2004 and that such a request was declined by the Parliamentary Secretary to the Minister on 13 May 2004 (T22).  

EVIDENCE OF Ms MOHAMED

6.      Ms Mohamed informed the Tribunal of the following circumstances:

·That she was born in 1981 in Ethiopia, and that some 14 years later with her brother and friends of her father, she walked to seek refuge in Kenya, where she remained for a period of two years;

·She arrived in New Zealand at age 16 (approx), where she spent time studying English and over a period of some five years she worked for a period of two and a half months in an undisclosed activity;

·That she met her partner in 2000 and lived with him. She was unaware as to what sort of work he did and would disappear without her knowledge for a day to two weeks;

·That her partner spoke the same language as she did, but was not from the same tribal group in Ethiopia;

·That her partner became violent towards her during her first pregnancy and during this period, when she had established his correct name, he threatened her with a knife, as well as tying her up, after which he left her for three weeks without any support;

·That such violence continued during her second pregnancy and that at seven months, he departed, with Ms Mohamed stating that he would ring from time to time stating that he would kill her, if she disclosed his name to the authorities;

·That she had not confided her difficulties with her partner to anyone in New Zealand, which included the police. She stated that she last saw her partner in Auckland in May 2003;

·That as a consequence of her partner’s treatment of her she became depressed and sought assistance;

·That she became a New Zealand citizen in 2003, and received New Zealand Social Security benefits for herself and her two children until she left to come to Australia;

·That she left New Zealand to come to Australia in July 2003 because of her fears concerning her partner and concern that her partner’s family might try to take her children away from her;

·That since she arrived in Australia she has not made contact with the Ethiopian community as she is afraid that her ex-partner may learn of her whereabouts;

·That she has been living in the Marion Refuge Centre for some months; that she receives family tax benefits of $370.00 per fortnight; that she has been under treatment for depression with medication and counselling and that she is due to move to another refuge shortly, where she will have to make some contribution from the $370.00 received per fortnight for accommodation and food for herself and her two children.

OTHER EVIDENCE

7.      The Tribunal notes the following evidence:

·A letter from Dr MacLachlan to the Maternal Mental Health Team dated 14 June 2003 (T4), in which he describes the Applicant’s symptomology and circumstances, and to her reliance on help from an existing friend from Australia. Dr MacLachlan also notes that the partner has left New Zealand;

·A letter dated 25 June 2003 in which Dr MacLachlan generally summarises Ms Mohamed’s circumstances, and her intention to move to Australia, despite advice that it might add to her stresses (T5);

·A letter from a social worker in the Early Childhood Health Team in New Zealand dated 3 July 2003 in which reference is made to Ms Mohamed’s symptomology and that her partner had left the family the previous year (T6);

·A report from Dr Coffey dated 17 May 2004, in which she states that Ms Mohamed had been referred to her for treatment of extreme anxiety. Dr Coffey notes that the Applicant is having difficulty in caring for herself and her two children on the small benefits she receives (Exhibit A3);

·A report from Dr Lee dated 18 June 2004 suggesting a change in the living situation to help lessen the chance of frequent viral illnesses in the two children (Exhibit A2).

CONSIDERATION AND FINDINGS

8.      In this matter the Tribunal was assisted by an interpreter fluent in the Oromu language. Nevertheless the Tribunal noted that for most of the hearing Ms Mohamed was able to present her circumstances and history without need for the interpreter.

9.      The Tribunal, following a consideration of all the material, makes the following finding of fact:

·     Ms Mohamed is a New Zealand citizen, having taken citizenship in that country in 2003 having arrived as a refugee from Ethiopia via Kenya.

STATUTORY FRAMEWORK

10. Section 729 of the Act outlines the qualifications needed to receive special benefit as follows:

“ SOCIAL SECURITY ACT 1991
- SECT 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:

…

(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

(g)      if the person is:

(i) the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which this subparagraph applies; and

(ii) a person to whom subsection (2A) applies;

the person meets the additional criteria set out in paragraph (2B).

Note 1: for Australian resident see subsection 7(2).”

11. Section 7(2) of the Act defines an 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.

12. The Tribunal, while noting the nature of the circumstances that Ms Mohamed has experienced and the consequences of those experiences, concludes that Ms Mohamed is not an Australian resident pursuant to the definition contained in section 7(2) of the Act, as she is not an Australian citizen, does not hold a permanent visa nor is she a special category visa holder, who is a protected SCV holder.

13. Further the Tribunal was made aware that Ms Mohamed was not the holder of a visa that is in a class of visas determined by the Minister for the purposes of section 729(2)(f)(v) and:

·     That Ms Mohamed and her two children came to Australia in July 2003 and have resided for the most part at the Marion Centre Refuge in Australia;

·     That Ms Mohamed has detailed a history of domestic violence in a relationship in New Zealand, and that she feared for her life as well as her two children being taken from her by family of her ex-partner if she remained in New Zealand;

·     That she suffered from an adjustment disorder with symptoms of anxiety and depression and for which she has been treated in New Zealand and Australia;

·     That Ms Mohamed:

- is not an Australian Citizen; nor

- is she a holder of a permanent visa; nor

- is she a special category visa holder, who is protected SCV holder.

·That Ms Mohamed has had her request for special benefit by way of an ex-gratia payment pursuant to the Financial Management and Accountability Act 1997 declined.

14. Qualification for Special Benefit is specified in section 729 of the Act, which in part states “of visas determined by the Minister for the purposes of this paragraph”, namely section 729(2)(f)(v). As a consequence the Tribunal concludes that Ms Mohamed does not satisfy either section 729(2)(f)i) or (v) of the Act, as she is not an Australian resident nor is she the holder of a special class of visa determined by the Minister.

15.     In the context that the Applicant fails to satisfy the criteria of being an Australian resident or holding a special class of visa as determined by the Minister, the Tribunal concludes that the Applicant does not satisfy the necessary qualification for consideration of discretion that a special benefit should be granted. In essence the Applicant fails to satisfy either one of the two prerequisites necessary for the Tribunal to consider whether to exercise discretion to grant a special benefit to the Applicant.

DETERMINATION

16.     The Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell, Member

Signed:         Neil Glaser
  Associate

Date of Hearing  29 June 2004 
Date of Decision  17 August 2004

Representative for the Applicant              Christine Daniels
           Advocate for the Respondent                   Jane Green