Rahman and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1154

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1154

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3132

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHAMMAD RAHMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date23 December 2008  

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Applicant seeks maternity payment in respect of daughter – lodgement of claim for family tax benefit (including claim for maternity payment) – application refused – decision under review affirmed.

A New Tax System (Family Assistance) Act 1999 – sections 22, 36
A New Tax System (Family Assistance) (Administration) Act 1999 – section 39

REASONS FOR DECISION

23 December 2008     Ms N Isenberg, Senior Member

BACKGROUND

1.      On 9 December 2005, Mr Rahman lodged a claim for maternity payment in respect of his daughter, who was born in Bangladesh on 7 November 2004.  His application was refused on the basis that he did not lodge the claim within 26 weeks of his daughter’s birth.

LEGISLATION

2.      The legislation relevant in this matter is contained in the A New Tax System (Family Assistance) Act 1999 (“the FA Act”) and A New Tax System (Family Assistance) (Administration) Act 1999 (“the FAA Act”).

3.      A person is eligible for maternity payment in relation to a child if the person is the child’s parent and the person was eligible for family tax benefit (“FTB”) within 13 weeks from the birth of the child: subsection 36(2) of the FA Act.

4.      A child is considered to be an FTB child of a person if, amongst other things, the child is in the adult’s care and is an Australian resident: section 22.

5.      A claim for maternity payment must be made within 26 weeks of the birth of the child (subsection 39(2) of the FAA Act), although that time may be extended if the person making a claim for maternity payment was unable to do so within the required period due to severe illness associated with the child’s birth: subsection 39(3) of the FAA Act.

ISSUE

6.      Whether Mr Rahman can be paid maternity payment for his daughter.

CONSIDERATION OF THE EVIDENCE

7.      Mr Rahman was assisted in his evidence by Ms Ivana Prasad.  His evidence was given mostly with the aid of a Bengali interpreter.

8.      Mr Rahman gave evidence that he had attended several different Centrelink offices enquiring about maternity allowance from the time his wife was about 3 months pregnant, and was concerned that Centrelink records do not reflect these attendances.  During those visits – usually without the benefit of an interpreter – he had been given conflicting advice, but said he was told to come back when his wife (and child) arrived in Australia.Mr Rahman made a formal claim for maternity payment on 9 December 2005 (some 56 weeks after the child was born), which, it seems, was consistent with the Centrelink advice to return once his wife was in Australia. 

9.      Sometimes Ms Prasad accompanied him and she alleged that Centrelink had deliberately misled him because he was her carer and she was in a long-running dispute with Centrelink.

10.     I accept that Mr Rahman may have limited English and that he contacted Centrelink on several occasions enquiring about entitlement to maternity allowance.  Further, he may well have advised Centrelink in advance of the birth.  I make no comment about Ms Prasad’s assertions. 

11.     That, however, is not the end of the matter. 

12.     As I discussed at the hearing, it is unfortunate that every previous stage of the decision-making process in respect of Mr Rahman‘s entitlement to maternity allowance focussed on Mr Rahman’s failure to lodge the application within the specified 26 week time frame, in circumstances where he may possibly have been advised to do otherwise.

13.     There is, however, a substantive reason why Mr Rahman is ineligible for the maternity allowance.  He could only receive maternity allowance if, within 13 weeks from the child’s date of birth, he was eligible for FTB.  However, he was not eligible for FTB because the child was not an Australian resident, nor was she residing with Mr Rahman at that time.  In fact, it was not until 26 November 2005, when the child arrived in Australia with her mother for the first time, that she could be considered an Australian resident and, therefore, an FTB child. 

14.     There was no evidence that Mr Rahman was prevented from lodging a claim for maternity payment within the prescribed time due to a severe illness associated with the birth of his daughter: s 39 of the FAA Act.  In fact, his evidence was that his wife and child could not come to Australia earlier because of visa issues.  I accept his evidence that during the period his wife and child were in Bangladesh he was supporting them, but, unfortunately, this is not relevant to the test: the child must be in Australia.

DECISION

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         ...............[Sgd]...................
  Associate

Date of Hearing  10 December 2008
Date of Decision  23 December 2008
Appearance for the Applicant   In person, and assisted by Ms I Prasad
Solicitor for the Respondent     Ms A Garcia, Centrelink legal services