Re DEWR and Blakely
[2007] AATA 1450
•20 June 2007
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 532Newcastle 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 Social Security Act 1991 (“the Act”)). Therefore Ms Blakely must qualify as an Australian resident as defined in section 7(2) of the Act. The first criterion that must be met is that she resides in Australia (section 7(2)(a)). The parties agree that she satisfies that criterion.
3. Next, section 7(2)(b) requires that she must be 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.
4. It was agreed that Ms Blakely is not an Australian citizen and does not have permanent residency. It was also agreed that she is a special category visa holder. The question for me to determine is whether she is a protected special category visa holder, which in turn raises the question, what is the proper statutory construction of section 7(2E) and section 7(2F) of the Act? How that question arises is explained below.
The Legislation
5. Each of sections 7(2A), 7(2B), 7(2C) and section 7(2D) defines “protected SCV holder” according to various criteria. It is again not in dispute that the only definition Ms Blakely may be able to satisfy is that in section 7(2C)(b)(i). I have set out in my written document various provisions of the Act, however for present purposes I will just refer to those that are strictly relevant. Section 7(2C) provides:
A person who commenced, or recommenced, residing in Australia during the period pf 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if
…
(b) the time is after the end of that period, and either
(i) a determination under subsection 2E is in force in respect of that person; or …
(ii) (is irrelevant).
6. So in this case it is a question of whether Ms Blakely satisfies 7(2C)(2)(b) and that there is a determination under subsection (2E) in force. Section 7(2E) and 7(2F) are also relevant, as previously described. Section 7(2E):
A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that [relevantly]
(b) the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.
7. Section 7(2F):
If a person makes an application under subsection (2E), the Secretary must make the determination if
(a) the Secretary is satisfied that paragraph 2(E)(a) or 2(E)(b) applies to the person; and
(b) the application is made within whichever of the following periods is applicable:
(Relevantly the applicable provision is) …
(ii) if paragraph 2(E)(b) applies to the person - the period of three years beginning on 26 February 2001.
Finally, the Secretary must give a copy of the determination to the person.
8. Again, it is agreed that Ms Blakely began residing in Australia during the period of 3 months beginning on 26 February 2001, that is on 2 March 2001, and therefore satisfies section 7(2E)(b). Also no point was taken on behalf of the Secretary that Ms Blakely had not applied separately for a determination under section 7(2E). Mr Kennett, counsel appearing for the Secretary, stated that the Department’s position was that if a person applies for the benefit there has to be a determination made where that is relevant. The customer declaration dated 19 June 2006 was therefore treated as an application for a determination.
9. Mr Kennett argued that as Ms Blakely did not apply for the determination within three years of 26 February 2001 (ie, before 26 February 2004), the determination cannot be made. He argued that an applicant must satisfy the factual and temporal criteria in section 7(2E) and 7(2F) in order for a determination to be made. The Secretary has no discretion to exercise if the relevant time limit in section 7(2F) is not met and a determination cannot be made. He further argued that there were no words of empowerment in section 7(2E), rather section 7(2E) and section 7(2F) operate together as earlier described. He said that it is difficult to argue that 7(2E) is discretionary because there are no criteria, either implicit or explicit, for the exercise of that discretion. Further, the provision does not confer a status on an applicant but rather confirms that a factual status exists.
10. Mr Colborne, appearing for Ms Blakely, argued that section 7(2F) has the effect that if one of the specified temporal criterion is satisfied the Secretary must make the applied for determination, but if it is not, the Secretary has a discretion to make or not make a determination under section 7(2E). It is section 7(2E) that confers the power to make the determination. There is no ambiguity, but in any event the extrinsic materials support the interpretation he propounds. He referred to subsections (2C) and (2D) which also refer to a determination under section (2E) as reflecting that the power lies in that section. Further he argued that the construction contended for by Mr Kennett required the reading of the words “not” and “unless” into subsection 7(2F) so that a determination must not be made unless the time limits were met.
11. I was directed by the parties to a number of cases. In Re QX05/5 v Secretary Department of Family and Community Services (2005) ALD 730 Mr Christie, Member, held that section 7(2F) prescribed timelines had had to be met (paragraph 46). There the applicant was medically qualified but unrepresented. In Anab Jama v Secretary Department of Employment and Workplace Relations [2005] AATA 1188, Mr Pascoe, Senior Member, addressed the operation of section 7(2F)(b)(i) and held that section 7(2F) did not allow a discretion. He did, however, make the decision on the ground that the residency requirement had not been met. The applicant was unrepresented. In Re Firdousi v Secretary Department of Family and Community Services (2005) 89 ALD 436, Deputy President Forgie determined the matter on the basis that the applicant did not meet the residency criteria. However, she did comment on section 7(2F) (paragraph 37). She raised the question whether that provision conferred a discretion where the application was made outside the time limit, but it was unnecessary for her to determine that point. The Deputy President did hold that the section does not confer a discretion where a person does satisfy either criterion in section 7(2E).
Consideration
12. The appropriate starting point is to consider section 7 in its entirety. What is its purpose? It defines “Australian resident”. Relevantly, section 7 was amended in 2001 to limit New Zealanders’ access to social security payments (those are the provisions section 7(2) to section 7(2G) which I do not read for the purpose of this oral decision). Also the intention of the amendments was to protect the status of those New Zealanders who qualify to be Australian residents as of 26 February 2001 by virtue of the amendments. As submitted on behalf of Ms Blakely a special category visa subclass 444 is a temporary visa permitting a person to remain in Australia while the holder is a New Zealand citizen.
13. The provisions concerning protected SCV holders set out various time limits in relation to residency, absence from Australia and receipt of social security payments, which if satisfied protect the person’s status as an Australian resident, with consequential rights to social security benefits. Relevantly, the Secretary’s role is limited to making determinations under section 7(2E) and 7(2G), otherwise the provisions set out fixed criteria that must be met.
14. I accept as Mr Colborne stated, that the periods of grace in the provisions are different from those foreshadowed in the Second Reading Speech of the Family and Community Services Legislation Amendment (New Zealand Citizens’) Bill 2001 (Hansard page 24582, 28 February 2001). However, on a reading of the amendments it is my view that its clear purpose is to impose very limiting criteria including time limits in relation to determinations by the Secretary within section 7(2E) and 7(2G) in relation to those whose status may be protected.
15. It is useful to contrast those two provisions. In the latter, that is 7(2G), the secretary is obliged to make a determination in certain circumstances where section 7(2B) applies. A time limit for the making of that determination is imposed; see section 7(2G)(b). Further the Secretary is obliged to give a copy of the determination to the person concerned. A determination under section 7(2E) is made only if a person applies for it. If the meaning Mr Colborne contended for were adopted, there would be no time limit in relation to the making of applications for determinations described in section 7(2E). It would also have the consequence that if section 7(2F) had no application there would be no obligation on the Secretary to give a copy of the determination to the person who applied.
16. Section 7(2F) requires the following: an application to be made; the Secretary to be satisfied that paragraph (2E) applies; and that the application was made within the applicable period.
17. I therefore prefer the construction that section 7(2E) and 7(2F) operate together and that there are time limits on applications made for determinations described in section 7(2E).
18. In this case, where section 7(2C) applies, that construction has the consequence that the 3-year period in section 7(2C)(a) is congruent with the effective 3‑year period permitted by 7(2C)(b)(i) when a subsection 7(2E)(b) determination is made and the 3-year time limit imposed by section 7(2F)(b) applies. The legislative provisions operate consistently.
19. Mr Colborne relied on the Secretary Department of Family and Community Services v Brown [2006] FCA 532 at paragraphs 21 to 27. I just briefly refer to that decision. The quotation upon which he relies begins at paragraph 21:
The Court may construe words in a statute so as to operate in a particular way, even if the words used would not on a literal construction, so operate. However, the words which actually appear in that statute must be reasonably open to such a construction. As Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 687 said –
And then there is a quotation from the Chief Justice. Then he quotes paragraph 24:
A particular statutory provision is construed in its context, so that it is consistent with the language and purpose of all the provisions of the statute.
20. There are a number of cases thereafter quoted. I would interpolate at this point that in my view the construction which I have found in this case falls within that specification. It is a construction in the context and is consistent with the language and purpose of the provisions of the statute. The quotation goes on in the case of Brown:
Context or purpose can justify the Court in giving a “strained construction” to cure the mischief the provision was intended to cure or to achieve its clear legislative purpose.
21. And the case of Newcastle City Council v GIO General Ltd (S177/96) (1997) 149 ALR 623 is referred to. Again, I would interpolate that in the present proceedings I do not consider that the construction is strained, but in any event that is authority for the proposition that it may be. Paragraph 25 of the quotation says:
It is impermissible, however, as Newcastle City Council makes clear at CLR 113 and as reiterated in Rieson at [20], to use purpose or context to give a provision a construction which in light of the language used is unreasonable or unnatural.
22. It goes on:
Where the ordinary meaning of the provision is clear, it is not ambiguous or obscure and does not lead to a result that is manifestly absurd or unreasonable,section 15AB of the Interpretation Act does not permit the use of extrinsic material to arrive at the construction contended for.
23. In the construction in this case, and I am interpolating it again, I am not of the view that the language and the construction I have given is unreasonable or unnatural in the context of the legislation.
24. Coming back to the present case, Ms Blakely applied outside the applicable 3‑year period. She is not a protected SCV holder and therefore is not an Australian resident and does not qualify for parenting payment, although the result for Ms Blakely may seem harsh that in my opinion is a consequence of the legislation passed by the Parliament.
25. For the above reasons I set aside the decision under review and substitute, therefore, the decision that Ms Blakely is not an Australian resident within the meaning of section 7 of the Social Security Act 1991.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine KellySigned: Ms P Nimmagadda
AssociateDate of Hearing 28 May 2007
Date of Oral Decision 29 May 2007
Date of Written Reasons 20 June 2007
Solicitor for Applicant Australian Government Solicitor
Counsel for Applicant Mr J. Kennett
Solicitor for Respondent Welfare RightsCounsel for Respondent Mr C. Colborne
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