Mohammed and Secretary, Department of Social Services (Social services second review)

Mohammed and Secretary, Department of Social Services (Social services second review) [2022] AATA 3382 (14 October 2022)
Division:GENERAL DIVISION
File Number: 2022/2135
Re:Mohammed Mohammed
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Dr L Bygrave, Member
Date:14 October 2022
Place:Sydney

The decision under review is affirmed.
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Dr L Bygrave, Member
Catchwords
SOCIAL SECURITY – claim for special benefit – newly arrived resident’s waiting period – whether the Applicant suffered a substantial change in circumstances beyond their control after they first entered Australia – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) ss 7, 729, 732, 733, 734, 735, 736, 737, 738, 739, 739A, 739B, 739C
Secondary Materials
Social Security Guide – version 1.299 released 29 September 2022
REASONS FOR DECISION
Dr L Bygrave, Member
14 October 2022
Introduction

The Applicant, Mr Mohammed Mohammed, is 58 years old and a citizen of the Syrian Arabic Republic. He is currently residing in Australia and made an online claim for special benefit on 15 June 2021. This matter is about whether he meets the qualification criteria to be paid special benefit at the date of his claim.
Services Australia (Centrelink), both initially and on review, refused Mr Mohammed’s claim for special benefit. This decision was affirmed by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
Mr Mohammed subsequently applied for review with the General Division of the Tribunal.
The matter was heard by the Tribunal by videoconference in Sydney on 8 September 2022. Mr Mohammed did not have legal representation; he attended the hearing and gave oral evidence with the assistance of an interpreter of the Arabic language.
relevant legislation and Issue
The qualification criteria for special benefit are stipulated in section 729 of the Social Security Act 1991 (Cth) (the Act): subsection 729(2) states special benefit is a discretionary benefit and is only available to a person if (amongst other matters):
·no social security pension or benefit is payable to them; and
·they are ‘unable to earn a sufficient livelihood’ for themselves and their dependants (if any) because of ‘age, physical or mental disability or domestic circumstances or for any other reason’; and
·they are ‘an Australian resident’.
An ‘Australian resident’ is defined in subsection 7(2) of the Act as a person who ‘resides in Australia’ and, relevant to Mr Mohammed’s circumstances, is ‘the holder of a permanent visa’. It is not in dispute that Mr Mohammed is ‘an Australian resident’ because he was granted a partner sponsored (subclass 100) visa on 17 May 2017 that permits him to reside in Australia on a permanent basis and was residing in Australia at the date of his claim for special benefit.[1]
[1] Exhibit T-T13, pages 170-171.
Sections 732 to 739C of the Act outlines provisions for the payability of special benefit: these include the requirement at section 739A that a person is subject to a ‘newly arrived resident’s waiting period’ (NARWP).
The Social Security Guide (the Guide), which provides guidance on the interpretation and application of the Act, states that the NARWP applying to special benefit was extended from two years (104 weeks) to four years (208 weeks) from 1 January 2019;[2] however, where a person was granted a relevant permanent or temporary visa before 1 January 2019, they remain subject to a NARWP of 104 weeks.[3] The Guide further stipulates that ‘only’ the time a person is ‘physically present in Australia will count towards the NARWP’.[4]
[2] Social Security Guide, section 1.1.N.70.
[3] Social Security Guide, section 3.1.2.40.
[4] Social Security Guide, section 3.1.2.40.
As Mr Mohammed was granted a relevant permanent visa on 17 May 2017, in accordance with section 739A of the Act, he is subject to a NARWP of two years (104 weeks).
Exemptions to a NARWP are identified in subsections 739A(6), (7) and (8) of the Act.
I am satisfied the exemptions in subsections 739A(6) and (8) of the Act do not apply to Mr Mohammed as there is no evidence before the Tribunal that he holds a visa in the relevant class of visas determined by the Minister by legislative instrument, and he is not a refugee, a former refugee or the family member of a refugee within the meaning of the Act.
Subsection 739A(7) of the Act provides that a person is exempted from the NARWP ‘if the person…has suffered a substantial change in circumstances beyond [their] control after [they] first entered Australia’. To satisfy this provision, Mr Mohammed must be able to show that:
·he has suffered a substantial change in his circumstances that was beyond his control; and
·the change in his circumstances occurred after he first entered Australia.
The Guide sets out the following policy guidance:
Substantial change in circumstances
Some newly arrived persons may qualify for [special benefit] during the NARWP, if they have experienced a substantial change in circumstances beyond their control after arrival in Australia and are able to satisfy the available funds test.
…
Factors to consider for newly arrived persons
Newly arrived persons are required to have attempted to obtain support from all possible alternative sources before being granted [special benefit]. Before [special benefit] can be paid, the delegate must be satisfied that:
-    the change in circumstances is substantial and beyond the person's control and occurred after arrival in Australia, AND
-    they are in financial hardship and are able to satisfy the available funds test, AND
-    they have attempted to obtain a sufficient livelihood. For example, they have attempted to obtain support from their sponsor…, or have attempted to obtain employment, or if sponsored by a business, have attempted to work for their sponsor, AND
-    their available funds or support options were depleted because of the change in circumstances.
…
Sponsored newly arrived residents
A sponsored newly arrived resident is a newly arrived resident who has been nominated for migration to Australia by a sponsor. Sponsored residents must have made every effort to get adequate support from their sponsor before being granted [special benefit]. Once an [assurance of support] has been entered into, [special benefit] is only payable in cases where there has been an UNFORESEEN and substantial change in circumstances after arrival in Australia.[5] [emphasis in original]
[5] Social Security Guide, section 3.7.2.20.
evidence
The following chronology and facts are not in dispute:
·Mr Mohammed was born in the Syrian Arab Republic in 1964. He married his wife, Ms ‘RD’, and they commenced living together in 1995.
·Mr Mohammed was granted a partner (subclass 100) permanent visa on 17 May 2017; his application for this visa was sponsored by Ms ‘RD’.
·Mr Mohammed subsequently arrived in Australia on 23 August 2017.
·On 4 October 2017, Mr Mohammed departed Australia after residing one month and 12 days.
·Mr Mohammed returned to Australia on 8 May 2021.
·On 15 June 2021, 38 days after he returned to Australia, Mr Mohammed lodged an online claim for special benefit.
·Centrelink wrote to Mr Mohammed on 1 July 2021 to advise that his claim for special benefit had been refused because he ‘must have been in Australia as an Australian resident for 104 weeks to meet the residence requirements for the payment.’[6]
[6] Exhibit T-T14, page 174.
In his online claim for special benefit made on 15 June 2021, Mr Mohammed declared that he was applying for special benefit because he was ‘not eligible for any other payment’: he explained his circumstances are that he ‘recently returned to live in Australia with [his] wife and three kids’, he has ‘no source of income and [his] wife’s only income is from Centrelink’ and ‘all three of [his] kids are full time students’.[7] He also declared that he was ‘in severe financial hardship’, lived with his wife and three children in a home owned by his eldest son, and they ‘all contribute in paying the mortgage fee and life expenses as a collective family’.[8]
[7] Exhibit T-T4, page 25.
[8] Exhibit T-T4, pages 24 and 26.
Mr Mohammed filed bank statements of separate Australian bank accounts in his name and his wife’s name, which showed he had an account balance of $50 and his wife received fortnightly social security payments from Centrelink.
Mr Mohammed also filed undated written statements that set out the following information:
·He came back to Australia in May 2021 after his ‘financial assistance application’ was approved by the Australian Government that paid for the cost of his plane ticket and other travel related expenses.
·He is currently suffering ‘financial hardship and living difficulties’. He tried to look for a job when he arrived in Australia, but opportunities were ‘close to a zero’ due to the COVID-19 pandemic and his health is ‘not at its greatest’. He underwent cardiac catheterization both overseas and in Australia, and renal and groin surgery.
·He is ‘financially separated’ from his wife ‘due to personal problems’. She is also unemployed; most of her income is provided by Centrelink and is spent on the mortgage and house expenses.
·He has two children who are university students, and his youngest child is 13 years old. His children cannot afford to financially help him.
·He has been contacted by Revenue NSW to pay his quarantine fee of $3,000 and the cost of his plane ticket of $1,500.[9]
[9] Exhibit T-T11, page 108.
Mr Mohammed also filed medical imaging reports and medical letters that set out his health conditions. This included a report by Dr Bashar Mahmood (general practitioner) dated 16 November 2021 that stated Mr Mohammed has ‘chronic back and neck pains secondary to advanced osteoarthritis and spinal canal narrowing’, ‘bilateral inguinal and femoral hernia that needs surgical intervention’ and is under the care of a cardiologist for ‘coronary hear[t] disease and peripheral vascular disease’.[10] Dr Mahmood also wrote a referral to a urologist on 13 December 2021 that noted Mr Mohammed had experienced complications related to a ‘left sided ureteric calculus’ in 2020.[11]
[10] Exhibit T-T11, page 82.
[11] Exhibit T-T11, page 141.
On 6 July 2022, Mr Mohammed filed further evidence with the Tribunal including:
·A medical certificate from Dr Mahmood dated 27 June 2022, which stated:
oMr Mohammed has ‘chronic severe neck and back pain secondary to severe spondylotic changes’ in his cervical and lumbar spine, ‘disabling pain radiated down to his arms and legs’, and his pain is ‘resistant to pain killers’ and affects ‘his ability to work and to do his daily living activity’.[12]
oMr Mohammed’s neck and back pain ‘has rendered him depressed’ and disturbs his sleep, ‘making his employment even more difficult’.[13]
·A medical report by Dr Ali Majed Mohamad (cardiac diseases) (Syrian Medical Association Tartous Branch) dated 19 June 2022 (translated from Arabic on 22 June 2022) that stated Mr Mohammed:
Doesn’t complain of any cardiac diseases or high blood pressure; and does not have any other symptoms. Besides, he is in good pink of health.[14]
[12] Exhibit A1.
[13] Exhibit A1.
[14] Exhibit A2.
At the hearing, Mr Mohammed said he arrived in Australia in August 2017 on a partner visa sponsored by his wife and subsequently left Australia in October 2017 for ‘personal reasons’. Mr Mohammed explained that he felt bad after arriving in Australia in 2017 as he saw his wife and children were living in a small apartment and they had previously been in a good financial situation owning a shop and a house in Syria. He said he returned to Syria to ‘sell everything’ so his family could buy a house in Australia.
Mr Mohammed said that, while he was in Syria between October 2017 and May 2021, he sold their family house and shop, and then stayed at his brother’s home and worked at his brother’s clothes shop for six hours a day. He said he was able to support himself financially through wages paid by his brother and receipt of a pension from the Syrian Government. He confirmed that he is still receiving this pension but said it was only the equivalent of approximately AUD$25 per month.
Mr Mohammed told the Tribunal that he transferred money to Australia from the sale of his family’s house and shop in Syria. He said this money was then used for a deposit on the house now owned by his eldest son in Australia, maintenance on the house and a new car.
Mr Mohammed said he had intended to improve his English language skills and then find a suitable job when he returned to Australia in May 2021. However, he was experiencing health issues and the ‘lockdown’ due to COVID-19 did not assist his situation of finding employment. He acknowledged he was experiencing some health problems in Syria from 2019 and saw a cardiologist but said ‘this year’ his health has been ‘very bad’. He said he is paying for all his medical expenses in Australia ‘without any discounts’ and it is ‘very expensive’.
Mr Mohammed said he arrived in Australia in May 2021 with only a small amount of money (approximately US$150 and some AUD$) and relied on the Australian Government to assist with paying for his flight and hotel quarantine. He said his family in Syria has transferred money to him for his medical expenses, his older two children (who are studying at university) have provided him with money for medication and he has borrowed $2,500 from a friend. He also received $1,000 compensation due to the floods. He said he does not receive any money from his wife, Ms ‘RD’, and submitted they are ‘separated’ although they continue to live in the same house with their children and have taken no steps to divorce. He said he does not pay rent and Ms ‘RD’ contributes to the repayment of the mortgage from her social security payments and any earnings.
consideration
I am satisfied that, based on his circumstances and visa status, Mr Mohammed was subject to a NARWP of two years (104 weeks) in relation to his claim for special benefit made on 15 June 2021. I find that, as at 15 June 2021, Mr Mohammed had resided in Australia for only two months and 19 days (a total of the periods from 23 August 2017 to 4 October 2017 and from 8 May 2021 to 15 June 2021).
Consequently, the determinative issue for the Tribunal is whether Mr Mohammed is exempt from a NARWP under subsection 739A(7) of the Act and, in particular, whether he suffered a substantial change in his circumstances that was beyond his control and the change in his circumstances occurred after he first entered Australia.
Did Mr Mohammed suffer a substantial change in his circumstances that was beyond his control after he first entered Australia?
Mr Mohammed’s ‘Visa Grant Notice’ sets out the details of the visa grant and sponsor, and relevantly states that his visa application was sponsored by his wife, Ms ‘RD’.[15] I therefore have regard to policy guidance in relation to ‘sponsored newly arrived residents’ in the Guide that sets out he ‘must have made every effort to get adequate support’ from his sponsor (that is, his wife) before being granted special benefit, which is ‘only payable in cases where there has been an unforeseen and substantial change in [his] circumstances after [his] arrival in Australia’.[16]
[15] Exhibit A3.
[16] Social Security Guide, section 3.7.2.20.
In his application to the Tribunal, Mr Mohammed wrote:
I am undergoing a financial, health and personal hard situation, and I am in need for the income to help me buy my medicine, see private health consultants as well as undergo needed medical surgeries.[17]
[17] Exhibit T-T1, page 4.
Based on the evidence and for the reasons below, I am not satisfied Mr Mohammed suffered a substantial change in his financial, health or personal circumstances that was beyond his control after his arrival in Australia.
First, in relation to Mr Mohammed’s financial situation, I am satisfied he decided to return to Syria in October 2017 in order to sell the house and shop his family owned in Syria. He then transferred the money from selling these possessions to his family living in Australia, who used the money to purchase a house in the name of his eldest son, maintain the house and purchase a car. The mortgage for the house is paid by his older two sons and his wife (from social security payments), and Mr Mohammed does not pay rent. I also note Mr Mohammed’s declaration in his claim for special benefit that they pay the mortgage and life expenses ‘as a collective family’.
In these circumstances – where Mr Mohammed has contributed the deposit for a house, the financial resources of Mr Mohammed’s family members are pooled to pay the mortgage and household expenses, and Mr Mohammed’s wife (who sponsored his grant of Australian visa) is in receipt of social security payments – I cannot be satisfied that Mr Mohammed (or indeed, his family) is in financial hardship.
Moreover, I do not find that Mr Mohammed experienced a substantial change in his financial circumstances after he arrived in Australia given he came to Australia in May 2021 with very limited funds and in receipt of a pension (albeit a small amount) from the Syrian Government.
Second, in relation to Mr Mohammed’s health, I accept the medical evidence of his general practitioner, Dr Mahmood, that he experiences severe pain in his cervical and lumbar spine, heart disease, high blood pressure and is waiting surgical repair of a hernia.
However, while there appears to be a deterioration of Mr Mohammed’s health, I am not satisfied this was an unforeseen and substantial change in his circumstances after he arrived in Australia. In particular, I have had regard to the medical evidence that states Mr Mohammed experienced problems with his health while he was living in Syria. I note Mr Mohammed filed a medical report from a cardiologist, Dr Mohamad, who he told the Tribunal examined him in Syria in 2019. This report is dated 19 June 2022 and describe Mr Mohammed as having no cardiac disease, high blood pressure or any other symptoms. However, I must place minimal weight on this evidence because the date of this report is more than one year after Mr Mohammed departed Syria, appears to refer to Mr Mohammed’s medical conditions in a period three years earlier and is inconsistent with other contemporaneous medical evidence before the Tribunal.
Finally, with regard to Mr Mohammed’s submission that he is experiencing ‘personal problems’, this appears to relate to his separation from his wife, Ms ‘RD’. In his oral evidence to the Tribunal, Mr Mohammed said he and Ms ‘RD’ have had difficulties in their relationship since 2014 and he is separated from her ‘in every way’. However, he said they have not applied for a divorce and their extended families are not aware of their separation.
While I accept Mr Mohammed’s evidence that he is experiencing difficulties in his relationship with Ms ‘RD’, I cannot find this was an unforeseen change in his circumstances after he arrived in Australia given these issues have been present since 2014. I must also question the veracity of this situation given Ms ‘RD’ sponsored Mr Mohammed’s application for an Australian visa in October 2016 and their families are unaware of their separation.
For completeness, I have also considered Mr Mohammed’s arrival in Australia from Syria during the COVID-19 pandemic. I accept that he would experience difficulties as he adjusts to living in a new country and learning English. However, he has the support of his family and, given it was his decision to relocate, I do not regard this situation is an unforeseen and substantial change in his circumstances after he arrived in Australia.
Conclusion

Weighing all the evidence, I am not satisfied Mr Mohammed suffered a substantial change in his circumstances that was beyond his control after he first entered Australia.
For this reason, I find Mr Mohammed cannot be exempted from the NARWP in accordance with the provisions in subsection 739A(7) of the Act.
Decision
The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 14 October 2022

Date of hearing: 8 September 2022

Applicant: In person

Solicitors for the Respondent: Mr G Lozynsky, Services Australia

[2022] AATA 3382

14 October 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	8 September 2022
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Services Australia