Pejcinovski and Department of Family and Community Services

[2001] AATA 189

DECISION AND REASONS FOR DECISION [2001] AATA 189

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2000/976

GENERAL  ADMINISTRATIVE  DIVISION     )          
           Re      Zoran Pejcinovski 
  Applicant
           And    Secretary, Department of Family and Community Services         
  Respondent

DECISION

Tribunal       Mr J.T.C Brassil, AM, Member      

Date14 March 2001

PlaceMelbourne

Decision      The Tribunal decides to affirm the reviewable decision to reject the application for a disability support pension.
  ………(sgd J.T.C. Brassil)……
  Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – inability to work – whether inability commenced in Australia - Australian resident - decision affirmed.

Social Security Act 1991 ss. 7(2), (3), (5) & (7), ss. 94(1)(e)

Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Redmond and Secretary, Department of Social Security (1992) 26 ALD 362

REASONS  FOR  DECISION

14 March 2001  Mr J.T.C Brassil, AM, Member

1. This is an application for review of a decision made by a delegate of the respondent on 30 March 2000 and affirmed by an authorised review officer on 25 May 2000 to refuse the applicant's claim for a disability support pension on the grounds that he failed to meet the residency qualification.  On 3 July 2000 the Social Security Appeals Tribunal heard an appeal by the applicant but affirmed the original decision.

2. The applicant was present at the hearing on 12 October 2000 and was assisted by an associate fluent in the Macedonian language, Mr Sam Damevski The respondent was represented by departmental advocate Ms Rhonda Bradley. Documents submitted pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") were taken into evidence.
   FACTS

3. The applicant was born in Footscray, Victoria, on 18 August 1969.  Aged 2 years he was taken by his parents on 2 February 1972 to reside in Macedonia where he lived until 18 November 1996.  He returned to Australia on that date and resided here until 5 March 1997, a period of less than 4 months.  He returned to Australia on 28 November 1998 and has continued to reside here since then.  To the date of the reviewable decision that is a period of about 16 months.

4. In 1989 while resident in Macedonia the applicant was selected for national service in that country and while on that service with the forces was involved in a military truck accident in September 1989 in which he sustained serious injuries.

5. On 28 April 1999 his claim for disability support pension ("DSP") was rejected as he had become incapacitated in Macedonia and did not have 10 years Australian residence.

6. On 6 December 1999 the applicant was examined by Dr Lane of Health Services Australia to assess the level of his impairment.  He was given an impairment rating of 30 points and considered unfit for any work for award wages in the foreseeable future.  As he was considered medically eligible he was asked to apply for DSP on 10 December 1999 which he did by telephone on 15 December 1999.

7. After interview in January 2000 about his periods of absence from Australia a decision was made on 30 March 2000 to reject the DSP application on the grounds that he did not have a total of 10 years residence in Australia and his disability had occurred overseas.

8. On 10 June 2000 his Newstart allowance was cancelled because of his long-term inability to work.  In the circumstances he was put on Special Benefit from that date.
   ISSUES BEFORE THE TRIBUNAL

1. There is no issue concerning the medical eligibility of the applicant for the DSP hence the only issue is whether he meets the residency qualification required by the Social Security Act 1991 ("the Act").
   LEGISLATION

2. Qualification for DSP is set out in s. 94 (1) of the Act. The applicant satisfies all the prior sub-sections hence the Tribunal needs to determine whether he can satisfies the requirements of ss. 94(1)(e) which are as follow:

   "(e)     the person either:

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)       is not an Australian resident; and
   (B)       is a dependent child of an Australian resident;
   and the person becomes an Australian resident while a dependent child of an Australian resident."

1. Australian residency for the purposes of the Act is defined in s. 7. It is conceded by the respondent that the applicant satisfies other sub-sections and there was no claim for a residency exemption on the basis of refugee status hence consideration is necessary only for the following sub-section:

   "(5)     A person has 10 years qualifying Australian residence if and only if:

   (a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

   (b)the person has been an Australian resident during more than one period and:

   (i)        at least one of those periods is 5 years or more; and

   (ii)       the aggregate of those periods exceeds 10 years."

EVIDENCE

1. The applicant said he felt he was being discriminated against because as a child he had to leave Australia with his parents.  Until he turned 18 years he was on his father's passport.  He wanted to return to Australia and on turning 18 years he commenced action to have a passport in his own right.  It was during this period that the authorities called him up for national service in Macedonia.

2. His short visit to Australia at the end of 1996 was for his brother's wedding.  He would have stayed except his girlfriend, now his wife, had to complete her tertiary studies in Macedonia.  After this they came back to Australia to live permanently.

3. It was put that while he is on Special Benefit, not DSP, he has to report fortnightly and answer every time questions about why he is not working.
   SUBMISSIONS

1. Miss Bradley on behalf of the respondent submitted that the continuing inability to work dated from the military truck accident in Macedonia.  While the applicant satisfied the requirement for a continuing inability to work he could not satisfy the requirement of ss. 94(1)(e)(i) that he was an Australian resident at the time he first satisfied that requirement.

2. She further submitted that with a total of 3 years and 10 months residence in Australia the applicant could not and did not satisfy the alternative provided in ss. 94(1)(e)(ii) of 10 years qualifying Australian residence.

3. While the respondent could appreciate that the applicant had no control over where he lived while a minor and then for reasons out of his control during national service in Macedonia and that when possible, considering his injuries, did come back to reside in Australia the residency requirement had to be interpreted strictly.  In Re Redmond and Secretary, Department of Social Security (1992) 26 ALD 362 Senior Member Dwyer in dealing with an application for a sole parent's pension held that being 15 days short of the 10 years stipulated would deny payment of the pension. In that matter Mrs Dwyer stated that while it may be harsh the Tribunal had no power to amend the provisions of the Act.

4. Turning to the legal meaning of residence Miss Bradley referred to Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444 ("Hafza") at 449:

   "As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever."

5. She submitted that this view of Wilcox J would not, in the circumstances of this case, assist the applicant to meet the strict requirement of 10 years.  His time spent in Macedonia, as a child and as an adult, could not be construed as a temporary absence from Australia.
   CONSIDERATION OF THE ISSUES

6. The applicant was absent from Australia when he suffered his serious injury resulting in a continuing inability to work hence he cannot satisfy the requirement of ss. 94(1)(e)(i) and there was no submission suggesting that he had or could have refugee status that would bring him in under the provisions of ss. 94(1)(e)(iii).

7. The only issue for the Tribunal to decide is whether the applicant had 10 years as an Australian resident pursuant to ss. 94(1)(e)(ii).

8. Clearly the applicant had not spent more than 4 years resident in Australia at the time of his application and the Tribunal is of the view that a mere desire to return to Australia is not sufficient to show the continuity necessary to meet the tests in Hafza nor the strict provisions of ss. 7(5).

9. The Tribunal finds that none of the provisions of ss. 94(1)(e) are met by the applicant.
   CONCLUSION

10. The Tribunal will affirm the reviewable decision to reject the application for the DSP.

    I certify that the twenty-four preceding paragraphs are a true copy of the reasons for the decision herein of

    Mr J.T.C. Brassil, AM, Member

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  12 October 2000
    Date of Decision  14 March 2001

    For the Applicant  Applicant self-represented with the assistance of Mr S. Damevski, fluent in the Macedonian language

    For the Respondent                 Ms R. Bradley, departmental advocate