Rhodes; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1664
•13 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1664
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/01602
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
ANGELA RHODES
Respondent
DECISION
Tribunal Dr Gordon Hughes, Member Date13 August 2007
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that the Respondent is not an Australian resident for social security purposes. (sgd) Gordon Hughes
Member
SOCIAL SECURITY ‑ disability support pension -‑ whether Respondent was an Australian resident – whether Respondent a protected special category visa holder as defined in section 7(2C) ‑ failure to apply for determination under section 7(2E) within the period prescribed in section 7(2F) – whether Secretary has a residual discretion to overlook the requirements of section 7(2C)(b)(i).
Social Security Act 1991 sections 7, 94
Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001
Re Department of Employment and Workplace Relations and Mandessa Blakely [2007] AATA 1450
Re QXO5/5 and Secretary, Department of Family and Community Services [2005] AATA 646
Re Anab Jama and Secretary, Department of Employment and Workplace Relations [2005] AATA 1188
REASONS FOR DECISION
13 August 2007 Dr Gordon Hughes, Member 1. This matter was heard by the Tribunal on 16 July 2007. Mr Martin Pike, a Centrelink advocate, appeared for the Applicant and Ms Dora Patsias of State Trustees appeared for the Respondent.
2. This was an application for review by the Applicant of a decision of the Social Security Appeals Tribunal (SSAT) made on 16 March 2007 that the Respondent satisfied the requirements of section 94(1)(e)(i) of the Social Security Act 1991 (the Act) and therefore qualified for the Disability Support Pension (DSP).
3. The facts were not in dispute. The Respondent was born on 19 November 1977 and is a New Zealand citizen. She has been in Australia on several occasions since 1997 on a temporary visa. She last entered Australia on 20 January 2004. She suffered a stroke on 20 February 2004 and on 16 August 2004 lodged an application for DSP with Centrelink. Centrelink is the service delivery agency for the Applicant.
4. On 22 September 2004 Centrelink informed the Respondent that her application for DSP was unsuccessful because she did not satisfy the Australian residency requirements. At the Respondent's request, Centrelink reconsidered the decision and affirmed it on 16 June 2005. The Respondent then requested a review of the decision by an Authorised Review Officer (ARO). On 21 June 2005 the ARO also affirmed the decision. On 18 September 2006, State Trustees, on behalf of the Respondent, lodged an application for review of the decision with the SSAT.
5. There was no dispute that the Respondent had to be classified as an Australian resident in order to qualify for DSP under section 94(1) of the Act. The parties agreed that the only basis upon which the Respondent would meet this requirement would be as a protected special category visa holder (SCV holder). In upholding the Respondent's application for review, the SSAT concluded that the Secretary had a residual discretion to ignore the fact, that she had failed to apply for a determination by the Secretary as to residency within a period of three years from 26 February 2001, as required under section 7(2E) of the Act. The SSAT considered that it was sufficient if the Respondent was able to demonstrate that she had been residing in Australia during the three months beginning 26 February 2001.
6. The parties agreed that the issue for determination by this Tribunal was whether a residual discretion in fact exists under section 7(2C)(b)(i) of the Act, which would permit a determination in favour of the Respondent on the basis that she was residing in Australia during the three months beginning 26 February 2001, notwithstanding her failure during the requisite three year period from 26 February 2001 to apply for a determination under section 7(2E).
7. Section 94 of the Act sets out requirements that must be met before a person qualifies for DSP, including:
94(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f) the person is not qualified for disability support pension under section 94A.
Note 1: For 'Australian resident', 'qualifying Australian residence' and 'qualifying residence exemption' see section 7.
…
8. In order to determine whether the Respondent can be categorised as an Australian resident for the purposes of section 94(1)(e)(i), it is necessary to consider the definition of Australian resident in section 7(2).
9. Section 7(2) of the Act defines an Australian resident as 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. The parties agreed that the Respondent could only satisfy the definition of Australian resident on the basis of section 7(2)(b)(iii) of the Act. Further, the parties did not dispute that she was a SCV holder, and the question therefore was specifically whether she was a protected SCV holder.
11. Section 7(1) provides that protected SCV holder has the meaning given by sections 7(2A), 7(2B), 7(2C) and 7(2D) of the Act. The parties did not dispute that the Respondent was unable to satisfy the requirements of sections 7(2A), 7(2B) or 7(2D). She would therefore only qualify as a protected SCV holder if she could satisfy the requirements of section 7(2C).
12. Section 7(2C) provides that:
A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:
(a) the time is during the period of 3 years beginning on 26 February 2001; or
(b)the time is after the end of that period, and either:
(i)a determination under subsection (2E) is in force in respect of the person; or
(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.
13. The parties did not dispute that the Respondent did not qualify under section 7(2C)(a) or 7(2C)(b)(ii). It is necessary to determine, therefore, whether the Respondent met the requirements of section 7(2C)(b)(i) and, if not, whether the Secretary had a residual discretion to ignore a failure by the Respondent to meet that requirement.
14. Section 7(2E) provides:
A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:
(a)the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or
(b)the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.
15. The parties did not dispute that the Respondent would not have been entitled to apply for a determination under section 7(2E)(a) but would have been entitled to apply for a determination under section 7(2E)(b).
16. Section 7(2F) then provides:
If a person makes an application under subsection (2E), the Secretary must make the determination if:
(a)the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and
(b)the application was made within whichever of the following periods is applicable:
(i)if paragraph (2E)(a) applies to the person–the period of 12 months beginning on 26 February 2001;
(ii)if paragraph (2E)(b) applies to the person–the period of 3 years beginning on 26 February 2001.
The Secretary must give a copy of the determination to the person.
17. In the Tribunal's opinion, the Respondent is not entitled to seek a determination under section 7(2E) if the application is made outside the periods referred to in section 7(2F), and the Secretary has no residual power to waive this requirement.
18. In Re Department of Employment and Workplace Relations and Mandessa Blakely [2007] AATA 1450, the Tribunal concluded that:
…section 7(2E) and 7(2F) operate together and … there are time limits on applications made for determinations described in section 7(2E).
19. In Re QXO5/5 and Secretary, Department of Family and Community Services [2005] AATA 646, the Tribunal concluded:
The timelines [in relation to an application for a determination of residency] are prescribed by section 7(2F)(b)(ii): the application must be made between the three year period, 26 February 2001 to 26 February 2004…
…
Whilst this decision may seem harsh, it would probably be more appropriate to describe the outcome as unfortunate. There is no discretion provided in the legislation to deal with the factual circumstances of the applicant…
20. In Re Anab Jama and Secretary, Department of Employment and Workplace Relations [2005] AATA 1188, when commenting on the intention of section 7(2F), the Tribunal concluded:
…Given the context of the legislation, I am unable to see that it provides a discretion to the Secretary to make [a determination out of time] when the application is made over three years after that date…
21. The purpose of the scheme created by sections 7(2A) to (2G), as submitted by the Applicant and supported by the Explanatory Memorandum for the Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001, was to place New Zealand citizens on the same basis as other migrants in relation to their entitlement to access social security payments. New Zealand citizens who, like the Respondent, took up residence in Australia within a period of three months from 26 February 2001 were exempted from the effect of the changes for a three year period so as to minimise any adverse and capricious effects of the new rules on persons who were already committed to moving to Australia. Beyond that three year period, however, New Zealand citizens would only retain that protected status if they had taken one of the steps prescribed by section 7(2C) – either by applying for a determination under section 7(2E) or by making a claim for social security payments. In other words, the legislation was structured in a manner which deliberately acknowledged and accommodated the special circumstances of New Zealand citizens who were committed to becoming Australian residents at the commencement of the scheme. It seems improbable that the legislature would have intended that this precisely defined leeway could be further extended at the discretion of the Secretary.
22. This conclusion is consistent with the directions contained in the Guide to Social Security Law at 3.1.1.10 which provide that in order to become a protected SCV holder, a person who began residing in Australia within three months of 26 February 2001 must apply for a determination by 26 February 2004.
23. The Tribunal decides that, notwithstanding her clearly unfortunate circumstances, the Respondent does not qualify for DSP in accordance with the requirements of section 94(1) of the Act. The logic underpinning this conclusion can be simply summarised as follows:
·section 94(1)(e)(i) requires that a person applying for DSP must be an Australian resident at the time when that person first experiences a continuing inability to work;
·section 7(2) defines Australian resident; and the Respondent would only fall within that definition if, pursuant to section 7(2C)(b)(i), a determination under subsection (2E) is in force;
·the parties do not dispute that such a determination was not in force; and
·the legislation does not leave the Secretary with any discretion to waive the requirements of section 7(2C)(b)(i); a conclusion which seems unavoidable on the plain wording of the statute. This is consistent with the intention of the legislation and is supported by prior decisions of this Tribunal.
24. For the above reasons, the Tribunal sets aside the decision under review and in substitution decides that the Respondent is not an Australian resident for social security purposes.
I certify that the twenty‑four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
Dr Gordon Hughes, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing 14 February 2007
Date of Decision 13 August 2007
Advocate for the Applicant Mr M. Pike, Centrelink Legal Services Branch
Advocate for the Respondent Mr D. Patsias, State Trustees
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