Nancy Zaarour and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 535
•31 July 2013
[2013] AATA 535
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5503
Re
Nancy Zaarour
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
Decision
Tribunal Ms N Isenberg, Senior Member
Date 31 July 2013 Place Sydney The decision under review is affirmed.
....[Sgd]....................................................................
Ms N Isenberg, Senior Member
Catchwords
SOCIAL SECURITY – special benefit – newly arrived resident’s waiting period – no substantial change in circumstances beyond the Applicant’s control – special benefit not payable - decision under review affirmed
Legislation
Social Security Act 1991 (Cth), ss 729, 739A
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fomin and Anor; Secretary, Department of Social Security and [1998] AATA 161
Jaydev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 332
Secretary, Department of Social Security v Secara and Others (1998) 89 FCR 151Re Watts and Director-General of Social Security (1984) 6 NALN 201; [1984] AATA 374
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms N Isenberg, Senior Member
Decision under review
A decision made by the Social Security Appeals Tribunal ('SSAT') dated 13 November 2012, to affirm a decision made by the Centrelink authorised review officer on 14 September 2012 to reject Ms Zaarour's claim for special benefit.
Background
On 15 January 2011 Nancy Zaarour, the Applicant, married Mr Issa Shihada who had been paid disability support pension ('DSP’) almost continuously since 2001.
The Applicant first came to Australia on 9 June 2011 on a subclass 676 visa (visitor).
The Applicant left Australia on 29 July 2012 and on the same day was issued with a subclass 309 (provisional spouse) visa. She returned to Australia on that visa on 2 August 2012. This visa is a temporary visa, allowing her to remain in Australia on the basis of her marriage. There is usually a waiting period of two years before the issue of a permanent visa.
On 3 August 2012 the Applicant lodged a claim for special benefit, but her claim was rejected on 16 August 2012 as she had not lived in Australia as an Australian resident for 104 weeks, and there was no substantial change in her circumstances. That decision was affirmed on internal review and by the SSAT. The Applicant seeks review of that decision.
Issue before the Tribunal
Whether the Applicant:
·is qualified to receive special benefit from 3 August 2012;
·is subject to the two-year newly arrived resident's waiting period ('NARWP') and, if so;
·has suffered from a substantial change in circumstances beyond her control, which would warrant the exercise of the discretion conferred by section 739A of the Social Security Act 1991 to waive the waiting period.
Legislation
The relevant legislation in this matter is the Social Security Act 1991, in particular ss 729 and 739A. Those sections, so far as is relevant, provide as follows:
729 Qualification for special benefit
(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).
(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; and
…
There was no dispute that the Applicant did not qualify for any social security pension during the newly arrived migrant’s waiting period, and therefore could be considered for special benefit pursuant to section 739A(7) of the Act which states:
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.
…
Evidence
I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (‘the T-documents’), which I took into evidence. In addition, the following documents were tendered:
·medical reports of Dr Sayeh dated 8 April 2013 and 11 January 2013;
·medical reports of Associate Professor Dr Lloyd Davis dated 10 January 2013 and 1 June 2009;
·an operation report from Westmead Hospital dated 8 November 2011;
·a bundle of reports of medical investigations dated 7 and 8 November 2011, 25 August 2011 and 30 October 2012;
·a letter from Wesley Creditline Financial Counselling Service dated 5 February 2013.
Both the Applicant and Mr Shihada gave evidence.
Consideration
The Applicant and Mr Shihada gave evidence that they are finding it impossible to support their family on Mr Shihada's DSP and the Family Tax Benefit. The Applicant's husband is on a single rate of DSP ($808.40 per fortnight) and is also in receipt of family tax benefit ($767.06 per fortnight). They told the SSAT that they regularly call on friends and family for support, but the support provided is minimal at best because 'everyone is doing it hard'. There was evidence that they have sought assistance from charity organisations. Their household includes their child and the Applicant’s two children aged 17 and 15. Mr Shihada told the SSAT that out of his DSP he pays $260 per week for Housing NSW accommodation; his medications cost about $125 per fortnight, even with a pension card; and that he is left with about $300 per fortnight to meet all the other costs of living. He owes his brother $12,000, and they are behind on all their utility bills (of which they provided evidence).
The Applicant said she would not have claimed special benefit if she and her family were not in desperate need of help. In the application she wrote that her partner, (presumably Mr Shihada) gave a Power of Attorney to his daughter and she took all his money from the account. No evidence was given about this claim to the Tribunal, nor does it appear to have been raised at the SSAT. In the application the Applicant wrote that Mr Shihada had a compensation claim pending and had been unable to access his superannuation. At the hearing Mr Shihada said he had received $68,000 from NRMA insurance.
Mr Shihada said he had not wanted a carer visa for his wife.
“Special benefit” has been described as a payment of last resort under the Act, made to people who are otherwise ineligible for a pension: Secretary, Department of Social Security v Secara and Others (1998) 89 FCR 151 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 s 729(2)(e) of the Act.
A newly arrived resident must wait for a period of two years before being eligible for special benefit. Where, however, if the person has suffered a substantial change in circumstances beyond his or her control the waiting period may be waived. Unless the Tribunal can be satisfied that the Applicant has suffered a substantial change in circumstances beyond her control, the newly arrived resident's waiting period must continue to apply to her circumstances, thereby precluding her from being considered for payment of special benefit at the time she applied.
The Guide to Social Security Law (‘the Guide’) provides direction to decision-makers on the application of the "special circumstances" discretion. While the Tribunal is not bound to apply the policy expressed in the Guide, but may do so and, indeed, will usually do so unless there are cogent reasons in a particular case for not doing so: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. Relevant to the interpretation of s 739A(7) of the Act, the Guide (at 3.7.2.20) refers to the timing of a substantial change in circumstances in the case of a temporary visa holder – after the claimant has arrived in Australia. However, case law is to the effect that there is nothing in the legislation limiting the operation of s 739A(7) to changes which occur after a migrant arrives in Australia, but that the change must have occurred after the person was irrevocably committed to migrate to Australia: (See for example, Chelechkov; Antipina and Department of Social Security [1998] AATA 94 and Secara). The Respondent was prepared to accept that the Applicant irrevocably committed to migrating to Australia when she married Mr Shihada on 15 January 2011, but submitted that as a temporary visa holder the relevant period for consideration of a substantial change in circumstances is after the applicant arrived in Australia. On the evidence before the Tribunal I do not think much turns on the timing in this matter. Even if I were to accept the Respondent’s submission, the outcome, for the reasons discussed below, would be the same.
The purpose of s 729 is to confer a discretionary power to pay a benefit to a person who is in real need of income and for whom all appropriate means of achieving a livelihood are closed. From a practical point of view, it is to support a person who needs welfare because it is not obtainable from any other suitable source: Re Watts and Director-General of Social Security (1984) 6 NALN 201; [1984] AATA 374.
In Jaydev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 332, the Tribunal referred to the decision of Matthews J in Fomin and Anor; Secretary, Department of Social Security and [1998] AATA 161 where her Honour stated that in situations where "[t]he immediate cause of the depletion of the [migrants'] funds was the fact that they were inadequate in the first place. One must then go back to ask whether the inadequacy of the funds was itself beyond their control."
Underlying the cases referred to above is the consideration of applicants who have no or significantly reduced means of income support. Inevitably the focus of the Tribunal’s consideration is the applicant’s means of income support. In my view the main questions which must be determined therefore are:
·What was the family’s financial position when the Applicant irrevocably committed to migrating to Australia, that is, 15 January 2011?
·Did the family’s financial position deteriorate significantly after that date?
What was the family’s financial position at 15 January 2011?
Mr Shihada said he is a qualified tradesman and had made a good living installing timber floors. He had a business with 18 staff and 10 vans. When he suffered a stroke in 2001 he stopped work. (By contrast, he was recorded as having told the SSAT that he had only started the flooring business in 2002.) He said that after his stroke his then wife sold his tools because his condition was ‘bad’. It was then that he first sought DSP. He used to make about $5,000 per week, so why, he asked rhetorically, would he want to be on Centrelink benefits if he were able to work.
In 2008 he had a pacemaker fitted and that stabilised his erratic heartbeat. He did physiotherapy several times a week to get himself back to a position to be able to work, as was his doctor’s recommendation. His doctor told him he did not need a carer. He said that by the end of 2009 he was well and had been taking care of all his children after his wife’s death in June 2009. He took one daughter to Palestine with him where he met the Applicant. Clearly, he said, he was well at that time.
The Applicant and Mr Shihada met in about January 2010. He was visiting his sister who lived near the Applicant. He visited for a second time in May or June 2010 for about a month. He had told the Applicant that his wife had died; he had children and needed to get married to help raise the family. He discussed nothing of his former life, such as his late wife having been his carer. He proposed to the Applicant and they married on 15 January 2011 in Palestine. As to what he told her about his circumstances, she said that he told her he was attracted to her and that they would start a new life together and raise their family together. As to what he lived on, the Applicant said he never told her his source of income, nor did she ask. She has never asked. She knew nothing of what he did for a living. She knew he had enough money to live on and that he had enough to travel. He paid for her visa application, the migration agent, and her ticket to Australia. She did not ask where he got the money. Mr Shihada said that he did not tell her he was on social security benefits, for cultural reasons.
The Applicant said that when she met (and subsequently married) her husband he was in good health. He had been able to travel, for example, without any problem. He had told her about his pacemaker but his condition was stable. He said he had been looking after himself and his children since his wife had died in June 2009.
Both the Applicant and Mr Shihada gave evidence that their plan had been for Mr Shihada to return to work in the flooring business since his health had improved. He said on his return to Australia he had spent $22,000 purchasing new equipment.
The Applicant said she was trained as a legal secretary, having worked for the government. In her application form though she wrote that she had never worked. She said she was also an accomplished cook of middle-eastern food. Mr Shihada told the SSAT he understood his wife to be a qualified chef and as such would be able to make good money.
They had discussed that she would come to Australia on a spouse visa but her husband had to go to Amman to apply. The migration agent said it would take some time for a spouse visa so they applied for a visitor visa in the meantime.
She said she had known nothing of the social security system in Australia because there was no such system where she was from. Mr Shihada agreed that he had told the SSAT that it would have been easier to get a carer visa, but said he did not need a carer because he was not sick and he was just frustrated by the bureaucracy.
Did the family’s financial position deteriorate significantly after 15 January 2011?
Mr Shihada said that, on is return to Australia after the marriage, he started buying tools for the new business but did no actual work. The Applicant arrived in Australia on 9 June 2011. Her husband was not working and, in fact, never worked after she arrived either.
Mr Shihada said he told Centrelink he was ‘training’ to get back to work, but he had not returned to work because he was ‘looking after the kids’. At some stage all his children left home, and this appears to have been precipitated by the Applicant’s imminent arrival because their evidence was that the household, since her arrival, has consisted of her, her husband, her daughters, and now their son.
Despite Mr Shihada's stated intentions, I consider the likelihood of him returning to work upon marrying the Applicant or on her arrival in Australia, given that his previous wife was his carer until her death in 2009, together with the fact that he had been unable to work since 2001 or 2002, was remote.
The Applicant said she wanted to come to Australia and had started to contact people about jobs. She had apparently received some job offers but because of her caring duties could not accept them. On the evidence, this would have been only after Mr Shihada’s heart problems, that is, on the medical evidence, in October 2011.
Mr Shihada said he is too ill to care for the children to enable the Applicant to work. The Applicant said her husband has had five operations since she first arrived in 2011. She said she has to be with Mr Shihada all the time because he can collapse for no reason and requires constant supervision. She is his full-time carer, and consequently is unable to work.
Mr Shihada had told theApplicant nothing of his source of income, nor did she ever ask. She knew nothing of what he did for a living, only that he had enough money to live on and to travel. He paid for her visa application, the migration agent, and her ticket to Australia.
Clause 3.7.2.20 of the Guide notes the onus of the Applicant to investigate fully the situation into which she was migrating noting, relevantly, that a partner’s misrepresentation of their circumstances, whether financial, physical, or material would not be considered a substantial change in circumstances for the purpose of qualification for Special Benefit, unless there were other extenuating circumstances. An example is provided: If upon arrival in Australia the person finds that the partner has embellished claims of circumstances, and the claimant decides to leave and lodge a claim for Special Benefit. The onus is on the person to fully investigate the situation into which they are migrating, so this is not considered to be a substantial change in circumstances beyond the person's control.
As at 15 January 2011, and after the applicant’s arrival in Australia, Mr Shihada had already been reliant upon DSP since at least 2001 (except for a period of about 18 months in 2002/2003). I accept that, for cultural reasons, he may not have explained his circumstances in full to the Applicant. She may consider she has been misled. However, it is not for the Australian taxpayer to address any disappointment she might have about her expectations. It is the fact that her husband was supported by DSP at the time of their marriage and at the time she came to Australia and he remains so. In that respect there has been no change, substantial or otherwise.
I have taken into account their evidence of having made some plans for their future. However the Applicant took no real steps beyond their ‘plans’ towards securing employment prior to migrating; or ensuring that her savings would be appropriate for her support and that of her children before committing to the migration process. She chose to rely on whatever support Mr Shihada was going to provide. I note too that in the months following their marriage, Mr Shihada continued to receive DSP, despite his belief he was capable of work. I do not consider the Applicant and Mr Shihada made appropriate or realistic arrangements for their support in Australia beyond continuation of Mr Shihada’s DSP payments. In my view, there has been no substantial change beyond the Applicant's control when she came to Australia with little, if any, financial resources.
Mr Shihada’s health
The Applicant gave evidence that one day, about two months after she had arrived, she thought her husband was asleep but she was unable to wake him. He was taken to hospital where he had an angiogram and his aortic valve was found to be faulty. He was told he needed heart surgery and he underwent an aortic valve replacement on 25 October 2011. He was hospitalised for 22 days. There were complications and his pacemaker was replaced in November 2011. Following this, for a period he was unable to use his hands and had to have a cushion on his chest. Still his heart was not normal until November 2012 when he was admitted to hospital for ablation to slow his heart rate. In January this year he fainted. He was admitted to hospital because his blood sugar was fluctuating. He said he is now having treatment for a lung condition, but was unable to provide evidence because a report would cost $500. He is unable to lift their child, or even to put on his own shoes. He does not consider he will be able to work again and his specialists have informed him that he cannot. The Applicant has to prepare special food for him for his diabetes.
I accept that Mr Shihada's recent medical problems are serious, but I do not accept that Mr Shihada experienced a substantial change in his health. He has always had multiple medical conditions which have been sufficiently disabling that he has been entitled to the DSP for many years, and such that he needed a carer from 2001 to 2009. It may be that since the last surgery there has actually been a material improvement in Mr Shihada’s health.
Consequently, I do not accept that the Applicant’s claim that she experienced a substantial change in her circumstances beyond her control because of her husband’s health.
The Applicant’s pregnancy
Clause 3.7.2.20 of the Guide refers to an applicant's pregnancy. It notes that where a claimant and her partner decide to have a child during the waiting period, the birth of a child is not considered to be a substantial change in circumstances, as it is a lifestyle choice over which the couple had control. I find that the Applicant’s pregnancy is not a substantial change in her circumstances because that the change was not outside her control.
Conclusion
I am not satisfied that the Applicant’s current circumstances are the result of a substantial change beyond her control since marrying Mr Shihada in January 2011. Consequently, the Applicant’s circumstances cannot be considered against the eligibility criteria for special benefit, because she has not yet been resident for 104 weeks as required by the newly arrived resident's waiting period.
I observe that the harsh reality is that the introduction of s 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 circumstances beyond his or her control, which would warrant the making of an exception to the general rule.
I find in this case that there is no substantial change in circumstances beyond the Applicant’s control. Hence special benefit is not payable to her.
Decision
The decision under review is affirmed.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member. .......[Sgd].................................................................
Associate
Dated 31 July 2013
Date of hearing 15 July 2013 Date final submissions received 18 July 2013 Applicant In person Solicitors for the Respondent P Sharma, DHS Program Litigation and Review Branch
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