Nunzia Di Marco and Secretary, Department of Social Services
[2013] AATA 754
[2013] AATA 754
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2578
Re
Nunzia Di Marco
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date 17 October 2013 Date of written reasons 23 October 2013 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS
SOCIAL SECURITY – age pension – whether applicant ever a permanent resident – Social Security Agreement between Australia and The Republic of Italy – decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999; s 29
Social Security Act 1991; s 7(2)
SECONDARY MATERIALS
Agreement on Social Security between Australia and The Republic of Italy, Rome, signed 13 September 1993; Art 5
REASONS FOR DECISION
Senior Member J Toohey
23 October 2013
Mrs Nunzia Di Marco is an Italian citizen and lives in Italy. She is aged 65. In June 2012, she applied for an age pension.
For the reasons given below, I have reached the same decision that Centrelink and the Social Security Appeals Tribunal reached, that Mrs Di Marco is not entitled to the age pension.
These written reasons reflect reasons given orally at a hearing on 17 October 2013 at which Mrs Di Marco and her husband spoke to the Tribunal by telephone from Italy with the assistance of an interpreter.
REASONS
Ordinarily, a person who applies for a social security payment must be an Australian resident and in Australia: Social Security (Administration) Act 1999, s 29.
Section 7(2) of the Social Security Act 1991 provides that Australian resident in the social security law means 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; or
(iii)a special category visa holder who is a protected SCV holder.
However, in April 1986, Australia and Italy entered into an agreement, the effect of which is that a person may be an Australian resident for the purposes of social security law even though she or he does not reside in Australia as long as she or he holds, or has at some time held, a permanent visa: Social Security Agreement between Australia and The Republic of Italy, Article 5. The Agreement overrides the usual provisions of the Social Security Act 1991.
Mrs Di Marco’s husband lived in Australia between 1961 and 1970 and held a permanent visa. He and Mrs Di Marco married in Italy in 1982. He receives an age pension from Australia.
Mr and Mrs Di Marco lived in Australia from 9 November 1997 to 19 October 1998. He arrived on a tourist Visa and in August 1998, was granted a Resident Return – Five Year visa which permitted him to remain in Australia indefinitely. She also arrived on a tourist visa, which was renewed while she was here. She has never held a permanent visa.
Because she has never held a permanent visa (and because she is not an Australian citizen or a special category visa holder), Mrs Di Marco is not an Australian resident.
Mr and Mrs Di Marco believe that, because Mr Di Marco held a permanent visa, she should also have been granted a permanent visa while she was in Australia. However, she did not automatically become a permanent resident just because her husband held a permanent visa; she had to apply for a visa. She did not apply. Mr and Mrs Di Marco say they should have been told that she needed to apply. Unfortunately, whether or not she should have been told, she did not apply and so she has never held a permanent visa.
Mr and Mrs Di Marco also say that when they made enquiries recently in London, they were advised that Mrs Di Marco would be entitled to the age pension because her husband is receiving it. If that is the advice they were given, it is not correct.
CONCLUSION
As Mrs Di Marco has never held a permanent visa, she has never been a permanent resident for the purposes of social security law and she cannot apply for, or receive the age pension.
I affirm the decision under review.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Toohey.
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Associate
Dated 23 October 2013
Date(s) of hearing 17 October 2013 Applicant In person Solicitors for the Respondent Ms K Martini, Department of Human Services
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