Ruaj and Secretary, Department of Social Services (Social services second review)

[2020] AATA 1880

Ruaj and Secretary, Department of Social Services (Social services second review) [2020] AATA 1880 (16 June 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2019/3832
GENERAL DIVISION  )

Re:  Nyajuok Chot Mach Ruaj
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:  Dr Damien Cremean, Senior Member

DATE OF CORRIGENDUM: 18 June 2020

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. At paragraph 6, the reference to Ms Siskovic is to be a reference to Ms Sheeana Dhanji.

..................[sgd].................................................

Senior member

Division: GENERAL DIVISION

File Number:           2019/3832

Re: Nyajuok Chot Mach Ruaj

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:                  Dr Damien Cremean, Senior Member

Date:  16 June 2020

Place:  Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to be paid Special Benefit in accordance with law

..........................[sgd]..............................................

Senior Member

Catchwords

SOCIAL SECURITY – special benefit—new entrant to Australia—change in circumstances- whether ‘substantial’ or not --whether or not preventable—whether any requirement of reasonableness—Guide to Social Security Law—departure from Guide—decision set aside.

Legislation

Social Security Act 1991 (Cth)

Guide to Social Security Law, Department of Social Services

Cases

Alboaskar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 183

Chelechkov and Department of Social Security [1998] AATA 94

Control Investments Pty Ltd and Australian Broadcasting Tribunal [1980] AATA 78

Jones v Dunkel (1959) 101 CLR 298

Muthuthamby; Secretary, Department of Family and Community Services [2003] AATA 747

Tillmanns Butcheries Pty Ltd vAustralian Meat Industry Employees Union (1979) 42 FLR 331

Zaarour and Secretary,Department of Families, Housing ,Community Services ,and Indigenous Affairs [2013] AATA 535

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

16 June 2020

BACKGROUND

1. The Applicant, Ms Njajouk Chot Mach Rauj, lodged a claim for Special Benefit under the Social Security Act 1991(Cth) (“Act”) on 20 November 2018.

2. Her claim was rejected on 8 December 2018 on the basis that there had not been any substantial change in her circumstances since arriving in Australia.

3. On 15 January 2019, the decision was affirmed by an authorised review officer and on 13 March 2019 she applied for review of the decision in the Social Services & Child Support Division of this Tribunal (“Tier 1”).

4. On 24 May 2019, Tier 1 affirmed the decision under review.

5. The Applicant now seeks a further review of the decision, claiming that the decision of Tier 1 was flawed as it failed to consider a few key factors.

   HEARING

6. The hearing took place on 31 January 2020. The Applicant was represented by Ms Siskovic, of counsel, from Legal Aid and the Respondent was represented by Mr Sparkes, lawyer seconded to the Respondent.

7. The Applicant speaks the Nuer language and duly gave affirmed evidence in person in that language with the assistance of an interpreter.

8. At late notice, with no objection from the Respondent, Mr Ter Yuual Yoa, a local Nuer community leader, also was called and gave affirmed evidence by telephone. 

9. With leave of the Tribunal, following the hearing the parties lodged closing submissions.

   LEGISLATION

10. Section 729 of the Act provides that the Special Benefit is a discretionary payment that may be made to a person if they are unable to earn a sufficient livelihood because of age, physical or mental disability or domestic circumstances or for any other reason and no other social security payment is payable to them.

11. Of relevance to the operation of s 729 is s 739A(1) of the Act which, where it applies, fixes a period called a newly arrived resident’s waiting period.

12. Under s 739(7) of the Act that waiting period does not apply to a newly arrived resident if, in the Secretary’s opinion, the person has suffered a substantial change in circumstances beyond the person’s control after the person first entered Australia.

    ISSUES AND CONTENTIONS

13. The main issue in this matter is whether the Applicant’s position falls within the exception in s 739A(7) of the Act. And, then, whether the Respondent should exercise a  discretion in favour of the Applicant.

14. The Applicant contends, on the grounds set out in her Statement of Facts, Issues and Contentions, that she does fall within s 739A(7) of the Act and that the discretion to waive the newly arrived resident’s waiting period  should be exercised in her favour. Hence, the decision under review should be set aside.

15. The Respondent, on the other hand, and in reliance upon the Guide to Social Security Law, contends that the Applicant falls outside s 739A(7) of the Act in that there has been no substantial change in the Applicant’s circumstances and, if there has been a change it is not a substantial one beyond her control.

16. Further, the Respondent contends that the decision to reject the Applicant’s claim for Special Benefit reflects the relevant legislation and public policy. Hence, the decision under review should be affirmed.

    EVIDENCE

    The Applicant

17. The Applicant gave evidence that she was born in South Sudan in 1991 making her now 29 years old. She said she had also lived in Sudan and Kenya. A Statutory Declaration made by her was placed in evidence after being read over to her.

18. The Applicant said she came to Australia directly from Nairobi in Kenya. arriving on 26 October 2018. She said she is married to a Sudanese man who is an Australian citizen and they have two children together. Her daughter came to Australia first with her husband and she then came with her son later. The Applicant’s daughter came out to Australia first because of illness and it was at her mother-in-law’s suggestion that this should occur as the priority and this is why she consented to her daughter (who was then about two and a half years old) going ahead of her with her husband.

19. The Applicant’s husband and mother-in-law looked after her daughter in Melbourne where she came to live. The Applicant had spoken to her mother-in-law in South Sudan by telephone.

20. The Applicant said she told her mother-in-law that she was not happy at her daughter going over ahead of her; however,, she said---But seeing you are there [in Australia] I will look at you as my mother, so if my daughter goes there you will take care of her so as a mother, and I hope you will take care of her and I will not be worried seeing you there. The Applicant said her mother-in-law agreed to this.

21. An incident at a wedding in Juba, in South Sudan, was then detailed by the Applicant. She said her husband accused her of having a boyfriend and said he was not willing to stay married to her. She says he then said her coming to Australia is just to take care about our children but not as a family members. After this a quarrel followed during which she says then he beat me up until I become unconscious, so then he raped me in the process I was not aware. After this incident she returned to Nairobi with him but [our] relationship wasn’t good by that time.

22. Despite this, the Applicant says she continued communicating with her mother-in-law and with her daughter (who were in Melbourne) by telephone although she believes her mother-in-law knew what had happened in Juba. The telephone conversations with her mother-in-law were, however, brief---Like, if I called they just saying “Hi, how are you and can I speak to my daughter” and that is it.

23. Before coming to Australia, the Applicant said she had not actually asked her mother-in-law if she could stay with her. She said—Yes, I didn’t ask her but presumably, based on the culture, so I know my daughter she is there with her and she is my mother-in-law, that is where I belong and I knew if I came to Australia that’s where I would stay. She just told her mother-in-law that she was coming to Australia and her mother-in-law never told her she could not stay.

24. The Applicant said in coming to Australia the support she had in mind was –just where to live, like the house where we can sleep and get the basic substance within the house and also things like food support, whatever before this eating in the house, we are—I am okay with that. She said—That was the support I was expecting adding ---I don’t have that much expectation outside with the services, you know. She did, however, expect some money to cover needed items—like some basic things like thing I need as in female, or in lady, so I’d assume if I ask her and if she has money ,maybe she can give me –that is my assumption.  In response to a question from Counsel she agreed her mother-in-law expected she would provide a house, food and basic support within that house such as toiletries, water, and somewhere to sleep—That’s correct, she answered. As well, she said because I don’t have money obviously and as a mother-in-law, if I ask her for such item, so money for that and if I ask I am expecting she can give me, yes.

25. Upon arriving in Melbourne, the Applicant went to her mother-in-law’s house. A friend, Nicole, drove her there from the airport. When she got to the house she was welcomed in and shown a room downstairs where she could sleep. As well as her mother-in-law, she also had two sisters-in-law living there one of whom had young children. There were also her two brothers-in-law living there. In all, the house had five bedrooms.

26. The Applicant said that she and her two children occupied the downstairs room all sleeping on a mattress on the floor. However, it proved too cold in that room so she and her children moved upstairs.

27. During the first five days she was there, there was sufficient food that was cooked and put in the fridge. However, after her mother-in-law left and went overseas to South Sudan, she said things turned around. She said it became really difficult, what to eat, because there was no food after we finished that food. The others in the house had money and bought their own food and put it in the fridge but would not give any to the Applicant. Then the Applicant was then forced back to the downstairs room.

28. The Applicant did not know her mother-in-law would be leaving for South Sudan before coming to Melbourne. After her mother-in law left the only time she spoke to her was on the phone in a conversation regarding her moving to the downstairs room.

29. The Applicant stayed at the house for maybe two weeks, but the situation was not good, as regards food in particular, and she had no money, so she moved out. After this she was able to stay with her children at a Facebook friend’s place in Chadstone for about five months. After that she moved to a hotel/motel in Chadstone following a disagreement with her husband over the children and sought out the services of the Salvation Army.

30. The Applicant is now living with her children elsewhere and she only receives the Family Tax Benefit as income which amounts to $530 per fortnight. She said this money is used on rent (including a security deposit), food and utility bills. She said that after expenses she is left with about $400 per fortnight.

31. The Applicant said she had applied for Special Benefit at Centrelink. She went there with a friend. However, she had not filled out a form like the one for Special Benefits before and did not understand much of what she was signing up for—No, I don’t really understand. They just read to me some of those questions, but I personally, I don’t have a full and comprehensive understanding of what each of them mean.

32. In cross-examination, the Applicant said she arrived in Australia without any money. She agreed she put in her application form for Special Benefit that she had been on a spousal visa but that she was no longer with her husband and was without money. She agreed she had written on her form—I’ve been abandoned by my spouse. I have no income or home.  I am new to this country. I don’t know what to do, where to go, and how I can support my two children. She agreed she had not mentioned her mother-in-law anywhere on the form. She agreed also that on the form she put down the date of 26 October 2018 as the date her relationship ended (although this was the date she arrived in Australia) and that she knew her husband would not be supporting her in Australia.

33. The Applicant agreed there was a reference in her Statutory Declaration to a conversation between her aunt and her mother-in-law but she could not say what was said between the two. But in the general context she said I was going to where my daughter was living, I was not going anywhere where my daughter was not living there. Culturally she said that seeing my daughter live with my mother-in-law, I married to that family, I belong to that family----so, she said, traditionally or culturally, where I come from, they are expected to cater for me. So if I came to Australia, what I know personally is that I will go and live with mother-in-law, because that is the family where I am married to.

34. The Applicant said she did not ask questions about food and basic supports because —to me, I felt like I am entitled to, because that is how we live back home. As regards arrangements she said —So, what I know and what [my mother-in-law] knows is that, I know my daughter live with her ,and if I am going to Australia, this is where I am going to live ,because my daughter is there. Further she added in answer to another question—I told her I am coming where you are, so if she was not contented with me or she was not in agreement, she would have told me no.

35. The Applicant said she was surprised about her mother-in law leaving—although she knew She had been travelling in and out. In a sense she indicated it did not matter whether her mother-in-law was actually there or not—The other children were home, her daughters were home, and my understanding at that time was that – so, what was important for us where to sleep and what to eat ,we will get that, and we will sleep in the house. The people left remaining in the house were not strangers, so they were part and parcel of the same family

36. In re-examination the Applicant agreed she had in fact stayed with her mother-in-law before she went away and she said she did not expect things to change after she had gone. After she had gone the Applicant said I am expecting the same support that mother would have given me, from them – referring to the remaining occupants of the house.

    Ter Yuual Yoa

37. In evidence (which with leave was given before that of the Applicant) Ter described himself as a Chairperson of the Nuer community in Victoria and agreed that he was a community leader.

38. Ter said he had a background in accountancy and was also skilled about Nuer identity with an understanding of its community, culture and values.

39. He indicated that the community gets to know when someone in the community is married so he knew that the Applicant was a married person.

40. Ter said that both the Applicant and the family she married into were members of the Nuer community. In the Applicant’s case it was reasonable for her to expect that as a family member she be looked after by the family. The Applicant had an expectation that her mother-in-law would welcome her and …support her. He said—This is normal in our culture. Although there had been some changes in that regard, coming to different Western culture, he agreed that someone who has married into a family can still expect their in-laws to look after them if they need support. He agreed that to expect …family support is reasonable in the culture.

41. In cross-examination he answered that according to the cultural norms of his community it would be expected that Ms Ruaj’s husband would support her. The action of her husband in not supporting her was not consistent with Nuer cultural values. Therefore, he agreed the cultural values of the community had not been adhered to in this case.

42. In answer to a question by the Tribunal Ter said in Nuer culture a husband cannot rape his wife.

    SUBMISSIONS

43. I shall summarise the main points in the submissions of the parties without going into them in detail.

44. It is submitted on behalf of the Applicant that she meets the criteria under s 739A(7) of the Act and that the decision under review should be set aside. Reference is made to a number of considerations and to a number of authorities including Chelechkov and Department of Social Security [1998] AATA 94 (“Chelechkov”). It is submitted that, in this case, the Tribunal should find that the Applicant has experienced a substantial change in circumstances beyond her control after she first entered Australia.

45. The closing submissions made on behalf of the Applicant submit that she had a clear and realistic expectation of support from her in-laws prior to arriving in Australia and that contrary to this she was not provided with such support.

46. In opposition the Respondent refers to the Guide to Social Security Law (“Guide”) in particular to Part 3.7.1.20 which it is said requires a substantial change in circumstances to occur after arrival in Australia. It has been held that the policy in the Guide should be applied in the absence of cogent reasons not to (see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645).

47. The Respondent submits the Applicant fails on two grounds: any substantial change did not take place after the Applicant’s arrival; and the change in circumstances was not beyond her control. In particular, the Applicant’s husband did not separate from her on 26 October 2018 but many months before this and the Applicant came to Australia with simply no plan in mind and there is no or no sufficient evidence to support any arrangement she had with her mother-in-law. The Respondent refers to a number of authorities including the decision in Chelechkov.

48. In closing submissions, the Respondent submits that the Guide should be applied in the absence of cogent reasons to do otherwise. As regards the evidence of Ter, the Respondent submits, inter alia, that contrary to the alleged cultural obligation it was not one observed in this case  and it is argued that the evidence suggests that a reasonable person in the Applicant’s position would have made inquiries about support before heading off for Australia.

49. There were also closing submissions made in reply on behalf of the Applicant.

    CONSIDERATION

50. I agree with the Respondent that the discretion given by s 739A(7) of the Act is not a general one but is quite specific and limited in the terms set out.

51. I also consider that the provision in s 739A(7) is to be described as one arising where, without Special Benefit, a person will be reduced to unacceptable levels of poverty, to use the words of Mathews J in Chelechkov at [48].

52. Having said these things, I must indicate that I am satisfied that I should accept the evidence of the Applicant and the witness Ter (referred to as the expert witness by the Respondent).

53. I do not believe that Ter was proffered as an expert, but rather simply as someone able to speak about Nuer culture and inform the Tribunal accordingly.

54. In any event, I do not consider any serious challenge was made to the honesty of either.  I find both to be truthful witnesses. No evidence to the contrary of either of them was called in that regard that nothing was produced by the Respondent to show the Applicant’s mother-in-law did not in fact leave Australia.

55. Based on the evidence of these witnesses, I find that the Applicant’s case does fall within s 739A(7) of the Act. That is, I am satisfied that the Applicant suffered a substantial change in her circumstances after she first entered Australia which was beyond her control. Indeed, I consider that to be obviously so. This means the decision under review must be set aside and another substituted.

1. Further, if this means that the Applicant is benefited for a period longer than she might have benefited had the community obligation been observed then that is simply fortuitous. If Parliament wanted it otherwise, it could have provided accordingly.  It cannot be an objection to the operation of s 739A(7) that it may considerably benefit an applicant who falls within its purview. That obviously is what Parliament must have intended.

2. This is how the Act operates in this case if the Applicant falls within s 739A(7). The terms of the community obligation in this case cannot reduce the operation of the benefit given.  I view it as irrelevant therefore to contend (as the Respondent did) that the Applicant never asked her mother-in-law to support her for two years and that, somehow, this must impact on the operation of s 739A(7). 

   A substantial change

3. I consider that the circumstances under s 739A(7) were those relating to the Applicant staying in Australia (for example, where she would stay, access to food and other necessities) and I consider that they changed at the time when her mother-in-law left Australia, some five days after she arrived here. The Respondent in submissions did not specifically identify the circumstances as I recall, and neither did the Applicant, but I consider my characterisation of the circumstances suffices for the purposes of the provision.

4. Reference is made by the Respondent to the decision in Jones v Dunkel (1959) 101 CLR 298 in the failure of the Applicant, being legally represented, to call her mother-in-law to give evidence. I am unclear about exactly what inference I should draw from this, if so. Perhaps it is intended to cast doubt on the Applicant’s version of events. But I have already indicated that I consider the Applicant to be a witness of truth. Aside from this, the last evidence I can recall of the whereabouts of the mother-in-law is that she was heading off to South Sudan. I have no evidence that she returned from there. Without evidence of that kind, I could not be satisfied that she was available and able to be called. A basic element in the application of the Jones v Dunkel rule is therefore lacking. But if the mother-in-law was available and able to be called, it might equally be said that the Respondent also has failed in that regard.  So, the reference to Jones v Dunkel, does not assist me either way. It would not be right to draw any inference adverse to the Applicant based on that rule.

5. I consider also that that the change in circumstances is not properly characterised as a destruction of the Applicant’s expectations, although that is what it resulted in. The change in my view was brought about by the decision of her mother-in-law to go overseas and implemented by her going. That change was a substantial one as the facts go on to show, and I consider also it was one beyond the control of the Applicant

6. In reaching my conclusion I am mindful of the meaning and purpose of the Act. Particularly of the context in which s 739A(7) operates mentioned by Mathews J above. But I am able to reach my conclusion without elaborating further on this aspect.

7. Not unreasonably, in my view, and irrespective of Nuer culture, the Applicant had an expectation of support from her mother-in-law and those in her mother-in-law’s household. Her mother-in-law knew the Applicant was coming to Australia.  Further, she had not told the Applicant to stay away. She knew or would have known that her granddaughter (the Applicant’s daughter) was living with in the house. That gives point to her not telling the Applicant to stay away, knowing she was coming over.

8. Moreover, the Applicant is her daughter-in-law. It could reasonably be expected that support would be given by her, especially as she was the mother of her grandchild.  Additionally, the grandchild staying with her in the house, and being looked after, is a child of very young years who has been unwell. The Applicant was in a new land, a new entrant in a foreign country.

9. These considerations show it to be quite reasonable for the Applicant to have an expectation of help or support from her mother-in-law. Then, when a cultural obligation is added in, vague though aspects of it are, the case becomes even clearer.  The fact that the Applicant’s husband abandoned her (to use that expression) does not mean the cultural obligation is non-existent. It simply means the husband did not observe it. I have independent evidence of the cultural obligation given by Ter. I could see no advantage to him in telling me an untruth about it.

10. Nor is the cultural obligation shown not to exist because, shortly after the Applicant arrived, the mother-in-law departed.  That simply shows she did not live up to the Applicant’s expectation or possibly it may show the mother-in-law thought the remaining occupants in the household would do the right thing. If the latter, her belief was obviously not well- founded as things turned out.

11. Somehow the Respondent wants to read s 739A(7) as containing a requirement of reasonableness. Reference is made to a number of authorities in that regard including Alboaskar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 183 (at [24]) and Zaarour and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 535 (at [36]) (Zaarour). In the first of these cases the Tribunal said-Learning that things were not as they expected does not amount to a substantial change in circumstances. But this was said in the context of the decision in that case which related to an applicant who had incorrectly believed she was eligible for Centrelink benefits. I am not bound by either decision and neither in my view case lays down any general rule.

12. Relatedly perhaps, it is argued that it is simply not reasonable for a person to travel to Australia with absolutely no resources. This seems to pick up a reference in either Zaarour or in Muthuthamby; Secretary, Department of Family and Community Services [2003] AATA 747 (at [28]) (The decision in Muthuthamby was wrongly cited to me as Mulhulhamby) I cannot see that this is a general proposition supported by the authorities referred to. It is a proposition moreover which has no textual support in the legislation. I reject the argument and the other similar point made —The Applicant did not address this [i.e. the situation] in a reasonable, responsible and sensible manner.  Nothing in the Act specifies this must be so.

13. Moreover there is no fault element to be read into s 739A(7) as the Respondent would seem to contend. The provision does not operate only where someone has acted in a manner which is reasonable, responsible and sensible. Nothing of the sort appears in the provision.

14. The Respondent characterised the mother-in-law’s leaving, as she did five days after the Applicant arrived as striking, arguing that this would indicate there was no such arrangement of the kind mentioned. But in my view, this simply is not so. All it shows, on a reasonable analysis, is that the mother-in-law did not live up to expectations.  Two weeks after the mother-in-law left, the Applicant felt she had to leave due to the circumstances. The arrangement I have mentioned, of which the Applicant had an expectation, did not come to fruition. Household support was not available, except in the barest way on the evidence. It must be remembered that at the time the Applicant was without funds and in a new country. The time during this two-week period would have been very difficult for her and her daughter and son.

15. The word “substantial” is, of course, a word open to interpretation by its very nature. It is a word calculated to conceal a lack of precision as Deane J said in Tillmanns Butcheries Pty Ltd vAustralian Meat Industry Employees Union (1979) 42 FLR 331 at 348. But I consider the change brought about by the mother-in-law’s leaving was significant and important as circumstances subsequently showed. Being significant and important, I regard it as sufficiently substantial for the purpose of the legislation.

    After the Applicant entered Australia

16. I regard that change as taking place after the Applicant entered Australia and not before. It was only after she arrived that she found out that her mother-in-law was leaving, as late as the day before. The fact that the mother-in-law had occasionally travelled in and out of the country was not in my view enough to put her on notice that this would happen at this time or that she would receive no support from her remaining in-laws once the mother-in-law had left.

17. I do not regard the change as having taken place while the Applicant was in Nairobi. That is because I do not regard the husband’s abandonment of her as the change in circumstances, even though that was the event which set matters off. But I am satisfied that the change became known to the Applicant after her mother-in-law left which was after her arrival here.

18. In this regard, I place no undue emphasis on, or give no significant weight to, what was written on the application form for Special Benefit or what was omitted from it. I do not consider that the application of s 739A(7) is to be determined at the time when the Applicant made her application, although by then the substantiality of the change in circumstances was known.

19. I cannot quite understand the Respondent’s submission that the change in circumstances occurred before the Applicant arrived in Australia except if it is posited that it came about (as indicated by the form) when the Applicant was abandoned by her husband in Africa. But I have already rejected that argument. I am quite satisfied, irrespective of what the form says or does not say, that the change in circumstances occurred in Australia and became apparent after her mother-in-law left Australia.

20. By reference to the Guide, it is also submitted that there was an onus on the Applicant to fully investigate the situation into which [she was] migrating. This follows the example given of someone’s partner who embellishes claims of circumstances in Australia so that the situation is quite different in Australia and the person finds this out after arrival. This is referred to in the Zaarour decision also.

21. But that is not this case. There have been no embellishments here. But if there were any, I would not hesitate to depart from the Guide. Firstly, there is nothing in s 739A(7) which specifies any such onus. Secondly, to urge an approach which lacks a legislative basis is to impair the review function of the Tribunal, which of course is exercised on the basis of existing law. In my view the Guide should not be quoted to urge a result or invite an approach which is not plainly justified by the legislation. Otherwise, the Tribunal is being called upon to abdicate its role on review. See Control Investments Pty Ltd and Australian Broadcasting Tribunal [1980] AATA 78.

    Out of the Applicant’s control

22. Finally, I cannot see how it can be contended that the substantial change in circumstances which occurred was within the control of the Applicant to prevent. That is, even if it was suggested that the Applicant should not have left Africa, to prevent the change occurring. It was not made known to the Tribunal when the mother-in-law actually decided to travel, it may only have been after the Applicant had herself left Africa. In that event, the Applicant not leaving Africa would make no difference. I have already dealt with the suggestion that the Applicant should have acted more reasonably and been better equipped to come to Australia. Moreover, it should not be overlooked that the Applicant’s daughter was in Australia.

23. The fact is, the mother-in-law was a free agent who could come and go as she pleased. If she had lived up to the Applicant’s expectations, of course, she would not have gone. But I cannot see anything which the Applicant could have done to prevent the substantial change from occurring.

24. I am unable to see any discretionary consideration which would disentitle the Applicant from being given a favourable exercise of discretion under s 739A(7). I am satisfied in all the circumstances that the Applicant meets the requirements of the Act in s 792(2) in that she is not otherwise entitled to payment of any of the benefits designated therein and is unable earn a sufficient livelihood due to her circumstances. The Respondent did not contend otherwise.

25. Following on from this, in all the circumstances I am satisfied also that the discretion under s 739A(7) should be exercised in the Applicant’s favour who, I am clear, falls within its purview.

    CONCLUSION

26. Accordingly, the decision under review is set aside and a decision is substituted that the Applicant is entitled to Special Benefit under the Act in accordance with law.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the written reasons for the decision herein of Dr Damien Cremean, Senior Member

.............................[sgd]...........................................

Associate

Dated: 16 June 2020

Date of hearing:

Date of final submission:

31 January 2020

6 March 2020

Counsel for the Applicant:

Solicitors for the Applicant

Ms Sheeana Dhanji

Victoria Legal Aid

Advocate for the Respondent:

Mr Brian Sparkes

Solicitors for the Respondent:

Department of Human Services