Peres and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 1097

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1097

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/562

GENERAL ADMINISTRATIVE DIVISION		)
Re		DANIELLE PERES

Applicant

And SECRETARY, DEPARTMENT of FAMILIES, COMMUNITY SERVICES and INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date20 December 2007 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................[Sgd]..........................

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – child care benefit – applicant not an Australian resident –no hardship or special circumstances to enable the applicant to be taken to be an Australian resident - applicant not eligible for child care benefit  – decision affirmed

Administrative Appeals Tribunal Act 1975 s 37
A New Tax System (Family Assistance) Act 1999 ss 7, 8, 42
Child Care (Australian Resident) Guidelines 2000ss 4, 5

Re Drake and  Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Beadle v Director-General of Social Security (1985) 60 ALR 225; (1985) 7 ALD 670

Re Beadle and Director-General of Social Security (1984) 6 ALD 1; (1984) 1 AAR 362

Dranichnikov v Centrelink [2003] FCAFC 133; (2003) 75 ALD 134; (2003) 53 ATR 270; (2003) 5(10) SSR 138

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

20 December 2006    Mr RG Kenny, Member   

Application

1.      Danielle Peres (the applicant) lodged a claim for child care benefit with Centrelink on 13 February 2006.  This was in relation to her son, Joao, who was born on 17 March 2004.  On 21 February 2006, the claim was rejected.  That decision was affirmed by an authorised review officer on 25 May 2006 and by the Social Security Appeals Tribunal on 5 July 2006.  The applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 11 August 2006.

Hearing

2. At the hearing, the applicant was assisted by her friend, Nancy Murphy. Jasmine Forsythe appeared on behalf of the respondent. Material before the Tribunal included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act1975.

Issues and Legislation

3. Mrs Peres was refused child care benefit because she did not meet the eligibility requirements which are set out section 42 of the A New Tax System (Family Assistance) Act 1999 (the FA Act). In so far as that provision is relevant in this matter, this was because she is not an “Australian resident” or a “special category visa holder” residing in Australia as those terms are defined in the FA Act. Under subsection 7(2) of the FA Act, an Australian resident is a person who resides in Australia and is one of the following: an Australian citizen; the holder of a permanent visa; or a special category visa holder who is a protected SCV holder. Mrs Peres came to Australia from Brazil with her son on 31 January 2006. Her husband arrived in Australia on 23 August 2005 and commenced working in Warwick where the family now lives. The visa which enables them to live and work in Australia is a temporary visa subclass 457.

4. Mrs Peres conceded and I am satisfied that she does not meet the requirements of the definition of an Australian resident. However, section 8 of the FA Act enables a person who is not an Australian resident to be taken to be one in the case of hardship or special circumstances. It reads:

(1)       The Secretary may determine:

(a)       that an individual who is not an Australian resident is to be taken to be an Australian resident for the purposes of Division 4 of Part 3 (eligibility for child care benefit) for a period or indefinitely; and

(b)       if the determination is for a period—the period in respect of which the individual is to be taken to be an Australian resident.

(2)       The Secretary may make a determination under subsection (1) if the Secretary is satisfied that:

(a)       hardship would be caused to the individual if the individual were not treated as an Australian resident for a period or indefinitely; or

(b)       because of the special circumstances of the particular case, the individual should be treated as an Australian resident for a period or indefinitely.

(3)       In making a determination under subsection (1), the Secretary must comply with any guidelines in force under subsection (4) in relation to the making of such determinations.

(4)       The Minister may, by legislative instrument, make guidelines:

(a)       relating to the making of determinations under subsection (1); and

(b)       in particular, setting time limits applicable to the determining of periods under paragraph (1)(b).

5.      In evidence were the Child Care Benefit (Australian Resident) Guidelines 2000 made in accordance with subsection 8(4) of the FA Act. Sections 4 and 5 thereof are relevant to the determination relating to hardship and read:

4 Guidelines

The following guidelines apply to the making of determinations by the Secretary under subsection 8(1) of the Act (determination that an individual is taken to be an Australian resident).

5 Matters for consideration

(1) subject to subsection (2), in considering whether hardship would be caused to an individual if the individual were not treated as an Australian resident, the Secretary must take into account the following matters:

(a) whether the claimant has, since arriving in Australia, experienced an event which was not reasonably foreseeable and which has substantially reduced his or her ability to pay child care fees; and

(b) if so:

(i) how long ago that event occurred; and

(ii) the continuing effect of the event in causing hardship if the claimant were not treated as an Australian resident.

(2) Events to be taken into account under subsection (1) shall not include:

(a) currency fluctuations;

(b) an increase in fees charged by an approved child care service;

(c) a reduction in a person’s available income due to routine or non-essential expenditure. 

6. No such guidance is provided by the Act or otherwise in relation to the matter of special circumstances. The issue for the Tribunal to determine is whether the circumstances of Mrs Peres are such that she is to be taken to be an Australian resident under section 8 of the FA Act.

Applicant’s Case

7.      Mr and Mrs Peres, along with their son, immigrated to Australia from Brazil and now live and work in Warwick.  It was an expensive undertaking because of the need to pay migration agent fees and air fares.  They were able to bring a small quantity of clothing and personal effects with them and, therefore, have also been forced to meet the costs involved in setting up their rented home.  They borrowed from family members in Brazil and have been making repayments since arriving in Australia.  Most of those debts will be discharged before Christmas 2006.  Both Mr and Mrs Peres are in employment.  Their combined income per week averages, approximately, $1,200.  After they meet their normal living expenses and their debt repayments, there is very little of that amount left over.  In particular, there has not been sufficient to enable Joao to attend a child care centre.  Their inquiries to a particular agency in Warwick revealed that the average weekly payment for five days of care was in excess of $200.  Mrs Peres needs to remain in full-time employment for financial reasons and has been relying upon friends to look after Joao each day.  While this has generally proved satisfactory, it has a consequence that Joao has not been able to meet and interact with other children which, in his case, is significant because he needs to learn to speak English and to integrate with Australian children.

8.      Mrs Peres said that she and her husband have really enjoyed living and working in Australia and hope to become permanent residents here in the future.  She believed that this might occur during 2007 so that, at that time, she will be eligible to receive child care benefits.  However, she submitted that it was unfair that she did not qualify for the child care benefit now because both she and Mr Peres have been responsible for the payment of taxes since they commenced employment in Australia.  She also said that she had not been aware that the cost of child care would need to be met from their own funds and, indeed, had been given contrary advice by the migration agency.  She also said that, if they had known of the payment arrangements, the family would, nevertheless, have migrated to Australia.

Consideration

hardship

9.      The matters for consideration are listed in section 5 of the Ministerial Guidelines which are noted above.  The only “event” which has arisen in this matter is that Mrs Peres was under the false impression that child care costs would not have to be met from the family income.  In her evidence, she said that she had made no inquiries from any person in authority as to whether or not the information apparently given to her in Brazil about child care payments in Australia was correct.  Mrs Peres was aware that, on arriving in Australia, both she and her husband would need to be engaged in employment.  She was also aware that they would not be in a position where reliance could be placed upon family members to assist with the care of Joao.  I am satisfied that a reasonable person in that situation would ensure that an official and correct description of child care arrangements was obtained.  In that sense, I am satisfied that the need to pay child care expenses was reasonably foreseeable.  I have noted Mrs Peres’ evidence that the income for the family has been less than anticipated.  However, their income has been expended on routine purposes, which includes the meeting of their taxation responsibilities, so any such reduction in available income cannot be taken into account because of subsection 5(2) of the Ministerial Guidelines.  I also note that a significant continuing expense for the family has been on repayment of the debts incurred in Brazil.  However, Mrs Peres’ evidence was that this was to end within a day or two of the hearing of this matter and that will assist them to cope financially in the immediate future.

10. In addition to the guidelines published by the Minister and noted above, the respondent also relied upon the Family Assistance Guide (the Guide) which is published by the respondent. It gives assistance to those involved in making decisions under the FA Act. The Tribunal is not bound to apply the Guide but will usually do so unless cogent reasons exist: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In this matter, I am satisfied that it is appropriate to give effect to the Guide. At paragraph 2.6.2.20, the Guide lists the following factors which are to be considered when assessing hardship:

Hardship may be caused by a traumatic event such as:

- the applicant's partner dying,

- the applicant separating from their partner, or

- the applicant, or their partner, becoming hospitalised or disabled.

In each circumstance you should consider:

- how recently the event occurred,

- whether the event was foreseeable, and

- the ongoing effect on the family.

11. I am satisfied that the hardship described by Mrs Peres is financial and not of a traumatic nature which meets the descriptions in that provision of the Guide or which meets the requirements of paragraph 8(2)(a) of the FA Act.

special circumstances

12. The FA Act provides no guidance as to the meaning of the term “special circumstances”. In Beadle v Director-General of Social Security (1985) 7 ALD 670, the Full Federal Court referred to the term in the context of social security legislation not materially different from that applicable to this matter. The Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. It indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss" (at 674). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security(1984) 1 AAR 362) where (at 364) the Tribunal had acknowledged that the term was "incapable of precise or exhaustive definition" and that, to be special, the circumstances "must have a particular quality of unusualness that permits them to be described as special": see also Dranichnikov v Centrelink (2003) 75 ALD 134 at 148.

13.     In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Keifel J, after referring to the Federal Court's decision in Beadle, observed (at 545) that special circumstances:

“would require something to distinguish... [the].. case from others, to take it out of the usual or ordinary case. ….It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.”

14. Matters raised by Mrs Peres include the need for her to be engaged in employment for financial reasons; the desirability of Joao’s attendance at a child care centre so as to assist him with learning English and in integrating into the Australian community; and the high costs of child care. In its reasons, the Social Security Appeals Tribunal noted that formal child care was not the only option available for the care of Joao. It also observed that there is an element of choice in the arrangements Mrs Peres can make for her son and that she is not alone in paying child care costs as a high proportion of the family income. I agree with those observations. Further, it may well be that Mrs Peres will be eligible at some point in 2007. I am satisfied that the circumstances in this matter are not out of the ordinary or so unusual as to make them special for the purposes of paragraph 8(2)(b) of the FA Act.

Decision

15.     The Tribunal affirms the decision under review. 

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .....................................................................................
  Legal Research Officer

Date of Hearing  14 December 2006 
Date of Decision  20 December 2006
The Respondent was represented by Jasmine Forsythe
The Applicant was assisted by Nancy Murphy