Re DEWR and Blakely - [2007] AATA 1450

Administrative Appeals Tribunal
WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1450
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1661

GENERAL ADMINISTRATIVE DIVISION )

Re DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And

MANDESSA BLAKELY

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Date of oral decision 29 May 2007
Date of written reasons 20 June 2007
PlaceSydney

Decision
For the reasons given orally at the conclusion of this hearing, the Tribunal sets aside the reviewable decision made by the Social Security Appeals Tribunal dated 30 October 2006.

Substituted for the decision under review is the decision that Ms Blakely is not an Australian resident within the meaning of section 7 of the Social Security Act 1991.

........................[sgd]......................
Senior Member, Mrs Josephine Kelly

WRITTEN REASONS
1. At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Applicant and Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2.    The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent.
CATCHWORDS
SOCIAL SECURITY – application for parenting payment – applicant is a New Zealand citizen - resident of Australia – whether applicant holder of protected SCV visa – whether there is a determination in force – whether time limits exist to apply for determination – held time limit does apply – applicant not a protected SCV visa holder – reviewable decision set-aside.
CASES
Re QX05/5 v Secretary Department of Family and Community Services (2005) ALD 730
Anab Jama v Secretary Department of Employment and Workplace Relations [2005] AATA 1188
Re Firdousi v Secretary Department of Family and Community Services (2005) 89 ALD 436
Secretary Department of Family and Community Services v Brown [2006] FCA 532
Newcastle City Council v GIO General Ltd (S177/96) (1997) 149 ALR 623
LEGISLATION
Social Security Act 1991: sections 7, 7(2), 7(2C), 7(2E), 7(2F), 7(2G) & 500(1)(b).
REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly

Summary
1.      Ms Mandesa Blakely is a New Zealand citizen who arrived in Australia on 2 March 2001. On 31 May 2006 she gave birth to her daughter. Tragically, her partner, the father of her daughter, had been killed in a motor cycle accident seven weeks after Ms Blakely had become pregnant. On 5 June 2006 Ms Blakely contacted Centrelink about making a claim for family tax benefit and on 14 June she made a claim for family assistance and Medicare. She filled out a customer declaration form “parenting payment single” on 19 June 2006.
2.      To qualify for parenting payment a person has to be an Australian resident (s 500(1)(b) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re DEWR and Blakely

Details

AGLC: Re DEWR and Blakely [2005] AATA 1188
Case: [2007] AATA 1450
Decision Date: 20 June 2007

CaseChat Overview and Summary

In the case of Re DEWR and Blakely, the applicant, a New Zealand citizen and resident of Australia, sought a parenting payment under the Social Security Act 1991. The primary issue before the court was whether the applicant held a protected substantive control visa (SCV) as defined by the Act, and if there was a determination in force that she was not a protected SCV visa holder. Furthermore, the court needed to determine whether there were any time limits that applied to the applicant's eligibility for a determination.

The court found that the time limits did apply to the applicant's eligibility for a determination. The applicant was not a protected SCV visa holder, and there was a determination in force that she did not meet the criteria for such a visa. The court reasoned that the applicant's visa status was relevant to her eligibility for the parenting payment, and since she did not hold a protected SCV visa, she was not entitled to the payment. Consequently, the reviewable decision made by the Social Security Appeals Tribunal was set aside.

The Tribunal substituted the decision under review with the determination that Ms Blakely was not an Australian resident within the meaning of section 7 of the Social Security Act 1991. The court held that since Ms Blakely did not meet the criteria for a protected SCV visa, she was not eligible for the parenting payment. The final orders of the court set aside the previous decision and established that Ms Blakely was not an Australian resident under the Act, thereby denying her claim for the parenting payment.

Orders

Orders of the court

For the reasons given orally at the conclusion of this hearing, the Tribunal sets aside the reviewable decision made by the Social Security Appeals Tribunal dated 30 October 2006.

Substituted for the decision under review is the decision that Ms Blakely is not an Australian resident within the meaning of section 7 of the Social Security Act 1991.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS