Muthuthamby; Secretary, Department of Family and Community Servic Es

[2003] AATA 747

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 747

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1760 

GENERAL ADMINISTRATIVE DIVISION		)
Re		Secretary, Department of Family and Community Services

Applicant

And Thangavel MUTHUTHAMBY

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date4 August 2003

PlaceSydney

Decision The Administrative Appeals Tribunal sets aside the decision of the Social Security Appeals Tribunal. And in substitution therefor decides that the Respondent is subject to the newly arrived resident’s waiting period and is not eligible for Special Benefit.

[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 – expectation of teaching position – unaware of requirement by major employer for English test- 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

Re Sarkar and Secretary, Department of Family and Community Services [2000] AATA 644

Secretary, Department of Social Security v Secara and Others (1998) 89 FCR 151

Re Secretary, Department of Social Security and Fomin  (AAT 12703, 12 March 1998)

Allahwerdi and Secretary, Department of Family and Community Services  [2000] AATA 15

Secretary, Department of Family and Community Services and Ewais [2000] AATA 487

Shaikh and Secretary, Department of Social Security (AAT 12785, 8 April 1998)

Secretary, Department of Social Security and Singh and Kaur (AAT 12667, 2 March 1998)

Chelechkov and Antitpina and Secretary, Department of Social Security, (AAT 12631, 18 February 1998)

REASONS FOR DECISION

4 August 2003 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      On 29 July 2002 the Secretary, Department of Family and Community Services ("the Applicant") decided to reject Mr Thangavel Muthuthamby’s (“the Respondent”) application for Special Benefit (T14, p40).  That decision was affirmed by the Authorised Review Officer on 15 August 2002 (T22).  The Respondent sought review by the Social Security Appeals Tribunal (“the SSAT"). On 9 October 2002, it was decided by the SSAT that the decision under review should be set aside.  On 19 November 2002 the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that decision.

APPEARANCES

2.      A hearing was held before the Tribunal on 15 July 2003. The Applicant was represented by Hanne Schuster, an advocate from Centrelink Service Recovery Team and the Respondent appeared without representation.

BACKGROUND

3.      On 8 September 2001,the Respondent arrived in Australia from Sri Lanka with his wife and 3 children. On 29 July 2002, he applied for Special Benefit on the basis that since his arrival there had been a substantial change to his circumstances, which was beyond his control.

ISSUE BEFORE THE TRIBUNAL

4.      The issues before the Tribunal were:

·     Whether the decision to reject the Respondent’s claim for Special Benefit was correct considering he was subject to the two year newly arrived resident’s waiting period.

· Whether the Respondent has suffered a substantial change in circumstances that was beyond his control thereby exempting him from the newly arrived resident’s waiting period pursuant to section 739A(7) of the Social Security Act1991 (“the Act”).

LEGISLATION

5.      The relevant legislation in this matter is the Social Security Act1991, in particular sections 729 and 739A. Those sections, so far as is relevant, provide 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.

…”

6. There was no dispute that the Respondent did not qualify for any Social Security pension during the newly arrived migrant’s waiting period. The Respondent is working and consequently section 729(2)(e) does not apply.

7. The Respondent could be considered for Special Benefit pursuant to section 739A(7) of the Act which states:

“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

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, the following documents were tendered:

Exhibit	Description	Date
A1	Applicant’s Statements of Facts and Contentions	11 July 2003
A2	Attachment ‘A’ of Applicant’s Statements of Facts and Contentions	7 July 2003
R1	University of Wollongong Academic Record , letter of approval for admission to Doctor of Education	29 September 1999, 23 June 1999
R2	Teacher classification as 5 year Trained Step 8	15/11/2001

APPLICANT’S EVIDENCE and SUBMISSION

8.      The Applicant called no evidence.

9. It was contended that the Respondent is subject to the newly arrived resident’s waiting period under s739A which requires newly arrived residents, such as the Respondent, to wait for a period of 2 years until they can become eligible to receive income support under the Act (excluding Family Tax Benefit). See Re Chelechkov and Antipina and Secretary, Department of Social Security (AAT 12631, 18 February 1998).

10. The Applicant contended that the Respondent has not suffered a substantial change in his circumstances beyond his control which would warrant the exercise of the discretion conferred by s 739A(7) of the Act. The Applicant argued as such the Respondent would still be subject to the newly arrived resident’s waiting period and ineligible for Special Benefit under section 729 of the Act.

11.     The Applicant referred the Tribunal to the full Federal Court decision in Re Secretary Department of Social Security and Secara  and others 89 FCR 151 , where Mansfield J stated:

“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) then 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...”

12. It was contended that the Respondent’s inability to secure employment as a teacher does not constitute a substantial change in circumstances as contemplated by the Act, as he had not secured such a teaching position in Australia, prior to his arrival. The Respondent had been informed by correspondence from the Australian High Commission in Colombo that the grant of a visa provided no guarantee of employment in Australia and that registration and licensing requirements vary between States and Territories. (T6, p15)

13.     It was submitted that even if the Tribunal was to find that the Respondent experienced a substantial change in circumstances, such change was not beyond his control, in that he has the capacity, by further study, to meet the requisite standards of the Professional English Assessment for Teachers (“PEAT”) exam.  In fact, the Respondent has subsequently taken control of the situation by undertaking further study to assist him with the test, and by obtaining casual employment to tide the family over this difficult period.

14. Special Benefit, under section 729 of the Act, is a discretionary benefit and is available only to a person who is unable to get any other income support payment. The discretion to grant Special Benefit is further subject to certain criteria as set out in section 729(2). Section 729(2)(e) maintains that to qualify for Special Benefit, the Applicant must be satisfied that the Respondent, because of age, physical or mental disability, domestic circumstances or any other reason is unable to earn a sufficient livelihood for himself and any dependants.

15.     As the Respondent was employed soon after lodgement of his claim for Special Benefit, he was clearly able to earn a sufficient livelihood and was therefore not qualified for Special Benefit from the commencement of the employment, if not earlier.  Accordingly, even if the Tribunal decided that the Respondent was not subject to a newly arrived resident's waiting period, there would be no, or only a very small period of, entitlement to Special Benefit.

RESPONDENT’S EVIDENCE and SUBMISSION

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

17.     The Respondent gave evidence that he had studied at the University of Wollongong in 1999 and was accepted to undertake a Doctorate in Education..  Upon completion of his studies, the Respondent returned to Sri Lanka and decided to emigrate.  He said it was his intention to work in Australia as a teacher.  To that end he sought to have his qualifications as a teacher recognised, having taught maths in Sri Lanka for 15 years.  On 5 June 2000 the Respondent received a skills assessment from the Department of Education, Training and Youth Affairs affirming that he was “suitable for the nominated occupation of Secondary School Teacher for the purposes of migration to Australia under the General Skilled Migration categories.” (T5, p13)

18.     The Respondent proceeded with his skilled migration visa application, which was granted on 6 June 2001 (T6, p14 – p17).  He acknowledged that it contained the following information:

Working in Australia

Your visa allows you to work in Australia. However, you are reminded that the visa provides no guarantee of employment in Australia, nor does acceptance of your qualifications for migration purposes. Employment opportunities in some occupations are limited. Registration and licensing requirements for particular occupations vary between States and Territories and may be amended from time to time.

…

Some information about the two year waiting period for social security payments in Australia is included in the migration application booklet. …

19.     When the Respondent arrived in Australia he applied for teaching jobs.  He was registered with the Catholic Education Office and sought many jobs in the Catholic school system with no response.  He applied at other private schools without success.  He was interviewed for a job in the Northern Territory about which he also heard nothing.

20.     A major employer, the NSW Department of Education, accepted the Respondent’s qualifications and an interview was arranged in a letter dated 27 September 2001 (T7, p18).  The letter stated that the Respondent would be required to undertake the PEAT exam.  The Respondent failed parts of the test twice and is to sit again shortly.

21.     The Respondent came to Australia with funds of $6500 which he expected to last the family about 6 months, being confident that he would get a teaching job within that time.  He has subsequently borrowed $7000 from a relative. 

22.     As the Respondent was not experiencing success with applications for teaching positions he sought other employment.  Midway through last year he obtained part time casual employment at a computer company. In November 2002 the Respondent secured a more suitable and regular position with a packing company. .  He has worked there consistently since that time, and in the last 3 months has worked full time. 

FINDINGS

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

24. ’Special Benefit’ has been described as a payment of last resort under the Act made to people who are otherwise ineligible for a pension: Secara (Supra) 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.

25.     A newly arrived resident must wait for a period of two years before being eligible for Special Benefit. However if the person has suffered a substantial change in circumstances beyond his or her control, the waiting period may be waived.

26.     The Tribunal turned to consider whether the Respondent had suffered a substantial change in his circumstances.

27.     On 8 September 2001, the Respondent left Sri Lanka, arriving in Australia with about $6500 to support himself and his family for roughly 6 months. Based on the information provided by him in his claim form (T11, p29), after paying rent, there would have been approximately $1300 left to feed and clothe the family of five during the 6 month period. 

28.     The Respondent relied on his understanding that because his qualifications were recognised in Australia, he would be able to attain a teaching job when he arrived.  The Respondent thus did not seek employment here beforehand.  As it transpired, some education providers do not require further qualifications. However, the NSW Department of Education, the major employer of teachers in this State requires the successful completion of the PEAT.  Had the Respondent made inquiries before leaving Sri Lanka he would have been aware of this requirement.  He may then have had more realistic expectations of his short-term employability and made the necessary financial arrangements to last until he was sufficiently proficient to pass the test.

29.     In Re Secretary, Department of Social Security and Singh and Kaur (AAT 12667, 2 March 1998), the Respondents 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;…”

30.     Applying the reasoning in Singh and Kaur (supra), and in Secara (supra), the Tribunal found that the Respondent had acted without proper and adequate investigation in coming to Australia, and had brought inadequate funds in the hope that his plans to be a teacher would come to fruition.  There was no evidence 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.

31.     The Tribunal also noted the decision in Re Secretary, Department of Social Security and Fomin  (AAT 12703, 12 March 1998) where Matthews J said:

“5. …If the expectation of easy employment is merely a product of wishful thinking, based perhaps on a migrant's over-confidence in the strength of his or her own qualifications, then the change which occurs when expectation meets reality is probably not beyond the person's control.

6. … It follows that any change resulting from the clash between their expectations and the reality of life in Australia was not beyond their control so as to bring them within subsection (7).”

32.     The Respondent’s inability to find employment in his profession is not a change in circumstances that was beyond his control as noted in Allahwerdi and Secretary, Department of Family and Community Services [2000] AATA 15 and Secretary, Department of Family and Community Services and Ewais [2000] AATA 487. The fact that the Respondent made a decision to live in Australia was a matter of choice and a risk that he was prepared to take. This was noted in Shaikh and Secretary, Department of Social Security (AAT 12785, 8 April 1998).

33. 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.

34.     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.

35.     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

36.     The Tribunal sets aside the decision of the Social Security Appeals Tribunal.  And in substitution therefor decides that the Respondent is subject to the newly arrived resident’s waiting period and is not eligible for Special Benefit.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         A. Krilis
  Associate

Date of Decision  4 August 2003
Representative for the Applicant               Self Represented
Representative for the Respondent          Hanne Schuster