Prodan and Secretary, Department of Family and Community Services

[2003] AATA 228

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 228

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Q2002/694,963

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ILIE PRODAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date11 March 2003

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

...............(Signed)................................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – Freedom of Information – no record of document sought – not a resident for the purposes of social security benefits

Social Security Act 1991: ss7, 500, 593, 729

Freedom of Information Act 1982: s24A

Migration Act 1958: s32

REASONS FOR DECISION

11 March 2003 Deputy President Don Muller       

1.The applicant seeks review of two decisions which are intertwined with each other.

(i)The Applicant seeks a document from the Respondent, namely, an application for special benefit or parenting payment which he claims he made on 3 September 2001 at the Atherton office of Centrelink.  The Respondent does not accept that the Applicant’s application for social security benefit was made in September 2001 and furthermore cannot find such a document in its files.

(ii)The Applicant’s application for special benefit, made either on 3 September 2001, or on 30 April 2002, has been rejected on the basis that the Applicant is not an “Australian resident” within the meaning of that term in the Social Security Act 1991.

2.The material available to the Tribunal discloses the following facts, which the Tribunal accepts.

(i)Ilie Prodan, the Applicant, was born in Zanoaga, Romania on 8 January 1949.

(ii)He is a German citizen.

(iii)He has a daughter, Alice, who is now approximately 11 years of age.

(iv)He and his daughter first arrived in Australia on 23 November 1998.

(v)He told the Tribunal that he entered Australia as a tourist but that he stayed longer than was allowed for tourists.  In fact, he and his daughter have made Australia their home since their first arrival.

(vi)On 15 February 1999, he was granted a visa “Class WA Bridging P Sub Class 010 Conditions Migration Regulations Schedule 8 8101 No Work”..  This visa allowed Mr. Prodan to remain in Australia until 28 days after notification of a primary decision;  or decision by a relevant Review Authority or withdrawal of his application.

(vii)He has applied for a protection visa but his application has been rejected on four occasions.

(viii)On 6 January 2000, he bought a farm of 34 hectares, with a house on it, for $150,000, at Mareeba.  He has since paid his Council rates, water rates, telephone bill and electricity charges.

(ix)On 14 January 2003, his Bridging Visa was changed to Class 050, which in effect is a visa which allows the holder enough time to pack and settle their affairs before they leave Australia.

3.Mr. Prodan claims to have made an application for “Parenting Payment” and/or “Special Benefit” at the Atherton office of Centrelink on 3 September 2001.  He said that he gave his forms to Mr. Guido at that office.

4.Mr. Prodan has produced some Centrelink pamphlets which indicate that he was at the Centrelink office on 11 September 2001.  For the purposes of this exercise, the Tribunal is prepared to accept that Mr. Prodan gave his application forms to Mr. Guido, who was an interpreter at the Atherton office, in September 2001.  Whether Mr. Guido passed the forms on to an appropriate officer at that time, the Tribunal has no evidence before it, one way or the other.

5.The Tribunal accepts that an Authorised Review officer handling Mr. Prodan’s matter, has been unable to locate any record of a claim for payment made by Mr. Prodan in September 2001.  The first available record of any claim by Mr. Prodan for social security benefits was made on 30 April 2002.

6.Mr. Prodan seeks to have any social security benefit to which he is entitled, paid from September 2001, rather than from 30 April 2002.

7.The Tribunal affirms the decision to refuse the request for the production of the document pursuant to s.24A of the Freedom of Information Act 1982 which provides:

“24A  Requests may be refused if documents cannot be found or do not exist

An agency or Minister may refuse a request for access to a document if:

(a)       all reasonable steps have been taken to find the document;  and

(b)       the agency or Minister is satisfied that the document:

(i)        is in the agency’s or Minister’s possession but cannot be found;  or

(ii)       does not exist.”

8.To qualify for any of the benefits to which Mr. Prodan could be entitled, he would have to be an Australian resident within the meaning of section 7 in the Act.  See sub-section 500(1)(b) for parenting payment, 729(2)(f)(i) for special benefit, and 593(1)(g)(ii) for Newstart Allowance.

9.“Australian resident” as defined by section 7 of the Act means a person who satisfies the following criteria:

“7(2)  An Australian resident is 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;

(iii)      a special category visa holder who is a protected SCV holder”

10.Mr. Prodan resides in Australia and has done so for over four years. However, he is not an Australian citizen, nor is he the holder of a permanent visa. Mr. Prodan has never been a special category visa holder, within the meaning of that term in section 32 of the Migration Act 1958.  Consequently, he is not an Australian resident for the purposes of the Act.

11.Special Benefit is also payable to certain persons who are not Australian residents.  They are those who satisfy the following criteria set out in section 729(2)(f):

“(v)      is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph;”

12.The class of visas so determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Act are:

Subclass 820           -          Spouse

Subclass 826           -          Interdependent

Subclass 309           -          Offshore spouse

Subclass 310           -          Offshore interdependent

Subclass 785           -          Temporary protection

Subclass 786           -          Humanitarian concerns

Subclass 447           -          Secondary movement (offshore entry)

Subclass 451          -          Secondary movement relocation

Mr. Prodan is not the holder of any of these visas.

13.Although Mr. Prodan has lived in Australia for over four years, he does not qualify for social security benefits, irrespective of whether he made his application for social security benefits in September 2001 or on 30 April 2002.

14.The decision to reject Mr. Prodan’s application for social security benefits is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  5 March 2003
Date of Decision  11 March 2003
Applicant  Mr. Prodan
Respondent  Ms. H. Wallis-Dunn, departmental advocate