Sani and Secretary, Department of Family and Community Services
[2002] AATA 1293
•13 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1293
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1036
GENERAL ADMINISTRATIVE DIVISION )
Re RAKESH SANI
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms N Isenberg, Member
Date13 December 2002
PlaceSydney
Decision The decision under review is affirmed.
[SGD] Ms N Isenberg
Member
CATCHWORDS
SOCIAL SECURITY – special benefit – newly arrived resident's waiting period – whether the Applicant has experienced a substantial change in circumstances which is beyond his control – Applicant arrived in Australia with insufficient funds for two years - Applicant's need to gain professional qualification as an interpreter – delay in sitting for professional qualification and failure to gain qualification - Applicant suffered depression – whether depression a substantial change in circumstances which is beyond Applicant's control
LEGISLATION
Social Security Act 1991 sections 729, 739A
CASE LAW
Re Zoarder and Department of Social Security (1998) 26 AAR 342
Re Zandieh-Nadem and Secretary, Department of Family and Community Services (2000) 59 ALD 557
Zandieh-Nadem v Secretary, Department of Family and Community Services (2000) 104 FCR 138
Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481: (1998) 89 FCR 151
Re Secretary, Department of Social Security and Fomin (AAT 12703, 12 March 1998)
Re Secretary, Department of Social Security and Lugovskoy (AAT 13058, 3 July 1998)
Re Secara and Secretary, Department of Social Security (1998) 3(3) SSR 29; (AAT 12702, 12 March 1998)
Re Secretary, Department of Social Security and Singh and Kaur (AAT 12702, 12 March 1998)
Allahwerdi and Secretary, Department of Family and Community Services [2000] AATA 15
Secretary, Department of Family and Community Services and Ewais [2000] AATA 487
Shaikh and Secretary,Department of Social Security (AAT 12785, 8 April 1998)
REASONS FOR DECISION
13 December 2002 Ms N Isenberg, Member
DECISION UNDER REVIEW
The decision under review before the Administrative Appeals Tribunals ("the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 13 May 2002 (T15) as affirmed by the Authorised Review Officer on 30 May 2002 (T22) and the Social Security Appeals Tribunal ("the SSAT") on 2 July 2002 (T2), to reject the Applicant's claim for special benefit.
BACKGROUNDThe Applicant arrived in Australia on 21 May 2001 from New Zealand. He applied for special benefit on 10 May 2002, on the basis that there had been a substantial change to his circumstances which was beyond his control, since his arrival.
ISSUES BEFORE THE TRIBUNALThe issues before the Tribunal were:
Whether the decision to reject Mr Sani's claim for special benefit as he was subject to the two year newly arrived resident's waiting period was correct.
If so, whether he has suffered a substantial change in circumstances that was beyond his control thereby exempting him from the newly arrived resident's waiting period pursuant to section 739A(7) of the Social Security Act 1991 ("the Act").
APPEARANCES
A hearing was held before the Tribunal on 21 October 2002 at which the Applicant was represented by Jackie Finlay of Welfare Rights Centre and the Respondent was represented by George Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink.
LEGISLATIONThe relevant legislation in this matter is the Social Security Act 1991, in particular section 729. That section, so far as is relevant, provides as follows:
"729 Qualification for special benefit
729(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.
Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).
729(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
(a) no social security pension is payable to the person during the period; and
(b) no other social security benefit is payable to the person for the period; and
…
(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and
(f) the person:
(i) is an Australian resident; or
…(v)is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph and
…"
There was no dispute that the Applicant has not qualified for any Social Security pension during the newly arrived migrant's waiting period and therefore could be considered for special benefit pursuant to section 739A(7) of the Act which states:
"739A(7) Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.
Note: For permanent visa see subsection 7(1)."
EVIDENCE: Documents
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents", T1-T25, pp 1-104), which the Tribunal took into evidence.
In addition, the following documents were tendered:
Exhibit Description Date
A1 Applicant's Statement of Issues 20/08/2002
A2 Applicant's Amended Statement of Facts & Contentions 16/10/2002
A3 Letter of Dr Jasvinder Kheray to Centrelink Authorised Review Officer 18/05/2002
A4 Letter of Sukhvinder Gill to Centrelink Authorised Review Officer 19/05/2002
A5 Letter of Applicant to Mr Patrick Browne (NAATI) 30/05/2002
A6 Further letter of Applicant to Mr Patrick Browne (NAATI) 03/06/2002
A7 Welfare Rights Centre's Submission to Social Security Appeals Tribunal on behalf of the Applicant 25/06/2002
R1 Respondent's Statement of Issues -
R2 Respondent's Statements of Facts & Contentions 03/10/2002
EVIDENCE: the Applicant
The Applicant gave evidence and was cross-examined on behalf of the Respondent. Questions were also put to the Applicant by the Tribunal.
The Applicant told the Tribunal he had come to Australia from New Zealand for three reasons. Firstly, he came for his professional development. Secondly, he came because he thought he could achieve a higher salary, and thirdly he anticipated a better quality of life.
He is originally from India but left there at age 13 and was educated in Germany. There he obtained a degree in Engineering and other professional qualifications. He went to New Zealand in 1989 and for about two years worked as an export manager, until he was made redundant in 1991. He had learnt a lot of interpreting skills in Germany and he spoke a number of languages fluently. It was his dream to be an interpreter. He started interpreting in about 1991 and from then did so extensively, including in superior courts all around the North Island of New Zealand.
He anticipated that because Sydney is significantly larger than Auckland he expected to obtain more work. He underwent three or four tests in New Zealand and underwent training at the Auckland District Court. Before he left New Zealand, he made some preliminary enquiries on the Internet and telephoned interpreting agencies here. He was told to go to the agencies when he arrived in Australia. He understood that would give the agencies an opportunity to interview him and assess his personality. He considered that one had to be on the spot to 'clinch' a contract. In cross-examination he said that he expected it would take three to four months for any professional body to respond to any inquiry from overseas and he thought it would be faster if he approached the agencies in person when he got to Australia.
He was asked about having been recorded as telling the Social Security Appeals Tribunal that he had made no enquires about job prospects while in New Zealand. He said that was not the fact as he had made general inquiries and spoke to agencies and to friends who had told him about employment opportunities generally.
In 2000, his mother whom he had not seen for 13 years, became ill in India and he travelled there to see her between October and December 2000. By that time he had about $10,000 saved but the expense of the trip and taking goods to India depleted his funds. Soon after his return to New Zealand he ascertained that the migration laws were about to change and his planned emigration to Australia would need to occur before 26 May 2001, or his application might not be viewed so favourably. Hence, in view of this urgency he had only about $5,200 to bring with him to Australia. In cross-examination he said he did not know about the two year 'waiting period' for benefits before leaving New Zealand, because it was his intention to work in Australia. He had no intention of coming here to be a welfare beneficiary.
In cross-examination the Applicant said that he knew of a friend who had arrived with almost no money but had got jobs straight away so he was not so concerned about the funds he brought with him. While in New Zealand he said he understood the cost of living to be a bit higher in Australia but knew that salaries were higher.
On arrival he stayed with a friend in Auburn for about four weeks, and then obtained his own flat, also in Auburn, at a rent of about $90 per week. Soon after his arrival he contacted the interpreting agencies and set up an ABN so as to conduct his interpreting as a registered business. He obtained his first interpreting work in about June 2001 and has continued with this work at the rate of about one to three jobs per month. He sought more work but the agency told him he would have to be certified by National Accreditation Authority for Translators and Interpreters ("NAATI"). He approached that organisation and was told he would have to sit a test and that his qualifications from New Zealand would not be recognised. He was shocked to learn this as he had expected that his qualifications would be recognised and that he would be given credit for his experience, especially in the courts. Notwithstanding the Applicant's lack of formal qualifications here he has interpreted in the Compensation Court and in the Residential Tenancies Tribunal.
He took the NAATI test in Punjabi only, as it costs $500 per language to sit the examination. Unfortunately he failed, receiving a score of 55 per cent whereas the pass mark was 70 per cent. He was subsequently told that NAATI fails 82 per cent of applicants because the (interpreter) market is 'saturated'. He could not afford to appeal the decision.
At the rate of work he was getting, his money was only going to last a few months and he was borrowing from friends. Because he has an international marketing diploma he thought he would supplement his income by doing telemarketing. In September 2001 he found a job easily because there were plenty of jobs and nobody wanted to do them because the work is so boring. He was only paid $12 per hour and the work was for only 17½ hrs per week. He found a slightly better paying job with slightly longer hours. He also had a tutoring job between July and November 2001, but that job finished when the school year ended. The telemarketing jobs also finished at about the same time.
Throughout December 2001 and January 2002 there was no available work at all. He was looking for engineering jobs but there was no work available. He made about 70 or 80 calls for small casual jobs. He wanted to provide an honest résumé but felt he was overqualified and not getting jobs because of that.
From about February 2002 he began to have problems sleeping, was 'irritated' and 'agitated' and was unable to make eye contact. He was in a bad mood. He had no means of support and felt he could not continue borrowing money. He was depressed. He didn't feel like doing anything. People can't imagine how it was for a 'highly professional person' not to be allowed to work. He was frustrated and felt 'like an aircraft on a runway'.
A friend suggested he get some medical advice. On 29 April 2002 he went to see Dr Jasvinder Kheray, a GP, who he said diagnosed 'severe depression' because of his shock in having to get NAATI certification. The depression then affected his capacity to work, and it was then it was suggested he go to Centrelink to apply for special benefit. He knew that depression can 'lead to anything' including suicide, because he had done interpreting for the Department of Mental Health in New Zealand. The doctor gave him some relaxation tapes. The doctor said he could send him to a psychiatrist in Auburn, depending on how severe the depression was. However, he would not have been able to afford a psychiatrist. In any event, the tablets and the tapes worked so it was not necessary to consult a psychiatrist.
He saw Dr Kheray about three or four times for counselling and notwithstanding that the doctor told him he was not capable of full time work, the doctor also told him to keep applying for jobs, as he had been doing, saying 'you could get your chance at any time'. On 6 May 2002 the doctor gave him some medication, Zoloft, which he must take once a day. After about two weeks he started to feel better. The medication stabilises his moods and he has more energy and better self-esteem. He last saw the doctor in June 2002 and was to see him in November 2002. Even though he does not feel '100 per cent' at the moment, he expects to be taken off the medication.
He could not recall if he was doing any interpreting jobs in April 2002, but in late April he got two days work stocktaking and then in May he got another telemarketing job, and decided that even though it is boring ('a nonsense') it was better for his self-esteem to be working. He works on commission and may earn between $120 and $360 per week. The work is only for 15 hours per week. The idea is to get well again and then go back to his profession - interpreting is his 'passion'. Nonetheless he continues to read the Sydney Morning Herald for engineering jobs as well. In the last financial year his income was about $4,500, from the telemarketing, the two days stocktaking, and his one to two days each month interpreting.
He said he would consider doing any job but that when one goes outside one's professional field the competition is very strong. Even though he had a clerical job as an export manager while in New Zealand he doubted if he would get a similar position now as he would be considered over-qualified.
He was asked in cross-examination if he would consider returning to New Zealand. His first goal, he said, was to get over his depression. He thinks that by now he would have lost his contacts and would have to start again. In any event, he has no money to travel.
SUBMISSIONS: the ApplicantIt was contended on behalf of the Applicant that his psychiatric condition, namely Bipolar Disorder, constitutes a 'substantial change of circumstances beyond (his) control', pursuant to section 739A(7) of the Act. If this contention is accepted then the two year newly arrived resident's waiting period does not apply to the Applicant and he can be considered for special benefit payments.
At the time the Applicant arrived in Australia he did not suffer from Bipolar Disorder. He became symptomatic from February 2002, although he did not seek medical attention in relation to his depression until 29 April 2002. He then advised his doctor that he had been experiencing problems with lack of concentration, poor self-esteem and insomnia since February 2002. His doctor observed deterioration in his condition by 6 May 2002, diagnosing 'Bipolar Disorder (severe anxiety with depression)' and prescribed antidepressants. He also referred the Applicant for counselling. He observed the Applicant to be 'very anxious, irritable and poor eye contact'. He noted that the 'depression had caused him financial hardship and affected his capacity severely to work.' (T17/87, Exhibit A3)
The Applicant had arrived in Australia expecting his qualifications to be recognised so he could work as an interpreter. He was shocked to discover his experience and qualifications were not recognised and that he would need to sit a test to be accredited. He had a long delay, 11 months, before he could sit the NAATI test. In the interim he obtained some casual work, but by Christmas 2001 he did not have any casual work and had expended the funds he brought to Australia and his income from previous casual employment. He was in severe financial hardship and began to display the symptoms described above. It is submitted that as a result of the above sequence of events the Applicant began to suffer from severe anxiety and depression which then affected his ability to be self-sufficient. It was submitted that by the time the Applicant sat the test, on 15 April 2002, he was suffering from symptoms of depression and anxiety.
It was contended that the SSAT failed to fully appreciate the severity of the Applicant's mental illness in that it failed to give sufficient weight to the doctor's report which outlined his condition as at April/May 2002. At the time the SSAT observed the Applicant, he had been on antidepressants for two months.
The Tribunal was referred to Re Zoarder and Department of Social Security (1998) 26 AAR 342 in which the issue of whether a change in mental health could constitute a 'substantial change in circumstances' within the meaning of section 739A(7) of the Act had been considered. In Re Zoader (supra) the Tribunal held that the Applicant's severe anxiety state, which arose from his family's financial hardship and his inability to obtain employment in Australia, constituted a 'substantial change of circumstances' within the meaning of the Act. In that case the Tribunal found that the Applicant's anxious mental state impeded his prospects of employment. In this application there was a substantial change in circumstances notwithstanding that the Applicant was still attending a Skillmax program and, apparently, looking for work.
It was contended that the Applicant's depressive illness detrimentally affected his employment opportunities and his ability to be self-sufficient.
Further, it was contended that even though the Applicant did not arrive in Australia with sufficient funds to be self-sufficient for two years, this does not prevent a finding that there has been a 'substantial change in circumstances'. Should a person suffer a change that is substantial, beyond his control and which makes it no longer appropriate to continue to require the person to provide for himself, the waiting period may be terminated.
The advocate for the Applicant referred the Tribunal to Re Zandieh-Nadem and Secretary, Department of Family and Community Services (2000) 59 ALD 557, where the Tribunal had held that there was no relevant change in circumstances because the couple had no adequate means of subsistence on arrival and therefore their deterioration in health after arrival in Australia had not impacted, and could never impact on their present or future self-sufficiency. However, on appeal the Federal Court (Zandieh-Nadem v Secretary, Department of Family and Community Services (2000) 104 FCR 138) considered that the Tribunal's interpretation represented an impermissible narrowing of the statutory requirement for a 'substantial change of circumstances'. The Applicant's significant deterioration in health after arrival in Australia could be considered under section 739A(7) of the Act.
In the light of the Federal Court's decision in Zandieh-Nadem (supra), and the Tribunal's decision in Re Zoarder (supra), it was contended on behalf of the Applicant that his mental illness constitutes a 'substantial change of circumstances beyond (his) control' within the meaning of section 739A(7) of the Act, and that special benefit has been payable to him since 29 April 2002, the day he lodged his intention to claim special benefit.
SUBMISSIONS: the RespondentNo witnesses were called on behalf of the Respondent.
It was contended on behalf of the Respondent that the Applicant's claim for special benefit was correctly rejected as he was subject to the two year newly arrived resident's waiting period. It was further contended that the Applicant has not suffered a substantial change in circumstances beyond his control since arriving in Australia. Accordingly, section 739A(7) of the Act should not be applied in waiving the waiting period to the Applicant's payment of special benefit.
The Respondent noted that the Applicant had understood there was a waiting period. In the Full Federal Court in Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481, Mansfield J stated at p 492:
"The intention of the amending Act in introducing the newly arrived resident's waiting period is clear enough. It does not require paraphrasing. Section 739A(7) is intended to relieve a person recently arrived into Australia from the consequences of the application of that waiting period in certain circumstances. … It presupposes a newly arrived person in Australia is in sufficiently needy circumstances as to otherwise qualify, in the case of other Australian residents, for some form of benefit under the Act. It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period. Thus the change in circumstances cannot be the need itself for the benefit under the Act, as the possible existence of that need underlies the legislative policy that, for two years it should not be met by benefits payable under the Act."
The Respondent submitted that the view expressed above should be adopted in the Applicant's case. The Applicant's need for income support after he arrived in Australia cannot be seen as a change in circumstances, particularly as he had an awareness of the existence of a waiting period, nor should it be a reason for waiving the two year waiting period.
The Applicant arrived in Australia with great expectations of professional development, more job opportunities, higher salaries and better quality of life (T13/77). However, he failed to make preliminary enquiries as to either employment opportunities or whether necessary accreditation for interpreters was required in Australia (T2/7). The Respondent also noted that the Applicant had two months before arriving in Australia to make such enquiries but failed to do so (T2/9).
The advocate for the Respondent referred the Tribunal to Re Secretary, Department of Social Security and Fomin (AAT 12703, 12 March 1998) where Matthews J said:
"5. …If the expectation of easy employment is merely a product of wishful thinking, based perhaps on a migrant's over-confidence in the strength of his or her own qualifications, then the change which occurs when expectation meets reality is probably not beyond the person's control.
6. … It follows that any change resulting from the clash between their expectations and the reality of life in Australia was not beyond their control so as to bring them within subsection (7)."In the light of Fomin (supra), the Respondent contended that the Applicant's expectations were based on his over-confidence in the strength of his qualifications and working experience. However, the clash between the Applicant's expectations and the reality of life in Australia was not beyond his control since he could have taken reasonable steps to enquire about conditions in Australia prior to leaving New Zealand.
The Applicant's evidence was that he was 'shocked' when NAATI failed to recognise his interpreting experience and overseas qualifications. This was brought to his attention a week after he arrived in Australia (T21/94). The Respondent contended that the delay in recognising qualifications or gaining NAATI accreditation should not be considered as being an undue delay beyond a person's control since the normal procedures for NAATI accreditation testing can take up to one year. The fact that he had to sit for the examinations did not guarantee that he would pass them.
In Re Secretary, Department of Social Security and Lugovskoy (AAT 13058, 3 July 1998), Mathews J stated:
"56. The recognition of Mrs Lugovskoy's medical qualifications will undoubtedly be a longer, more complex process than she expected when she first came to Australia. But this on its own is insufficient, in my view, to constitute a substantial change in her circumstances. There is no guarantee that Mrs Lugovskoy would have passed these examinations. More significantly, there is no evidence that her circumstances have in fact been affected by a delay in the recognition of her qualifications.
57. It is insufficient, in my view, for migrants seeking to bring themselves within subsection (7) to give evidence only of unexpected delays in recognition of overseas qualifications. This must be supplemented by evidence that the migrant's circumstances have in fact been affected by the delay. It is possible, for example, that even with recognition of Mrs Lugovskoy's qualification, there would not be a position available for her within her qualifications…."
While there may be no equivalent accreditation requirement in New Zealand to NAATI in Australia, the Applicant arrived with the assumption that he could obtain work under the same conditions as existed in New Zealand. The fact that he failed to make appropriate enquiries about his qualifications should not be considered as being a change which was beyond his control.
It was noted that the Applicant became depressed since his overseas qualifications were not recognised and he was required to sit for a test where the waiting period was quite long (T17/87-88). The Applicant's discovery after he arrived here that NAATI accreditation was required cannot be considered to be a change which was beyond his control. This view is supported in Re Secara and Secretary, Department of Social Security (1998) 3(3) SSR 29; (AAT 12702, 12 March 1998) where Mathews J stated at paragraph 10 of the unreported decision:
"10. …For in my view the difference between a migrant's expectations as to a relevant aspect of life in Australia (such as cost of living, employment prospects or, as here, social security assistance) and the reality of life here is capable of constituting a change in circumstances under subsection (7). The change occurs when a migrant with false expectations as to life in Australia is confronted with, and required to accommodate to, the reality. The circumstances have both a subjective component (the migrant's expectations) and an objective one (the reality of life here). Whether the change is a substantial one will depend upon the facts of each case. Whether it is beyond the control of the migrant will usually depend upon the source of the erroneous belief in the first place. If the migrant's expectation is merely the product of wishful thinking or a failure to make appropriate enquires, then the change which occurs when expectation meet reality is probably not beyond the person's control."
Although the Applicant might be in financial difficulties now however, the Respondent contended that his decision to arrive in Australia with insufficient funds to support himself was within his control. The Respondent noted that the Applicant arrived in Australia with $5,200 (T14/79) therefore, it was apparently unrealistic for the Applicant to financially support himself during the two year waiting period. In Re Secretary, Department of Social Security and Singh and Kaur (AAT 12702, 12 March 1998) the Respondents had arrived in Australia with insufficient funds. In that case, the Tribunal held that there had been no change of circumstances beyond their control:
"50. The respondents' plight is a particularly desperate one. Their utter destitution and reliance on family payments and so far, a few weeks work only, is causing extreme hardship. They were provided with totally inadequate information and they were ill-prepared for what they faced in Australia. Their migration plans were doomed at the outset by their lack of resources, and compounded by lack of up-to-date information as to the employment situation and the cost of living in Australia. However, this does not constitute a change in circumstances; nor was their lack of resources at the outset, and more particularly after they were aware that the migration process would consume their financial resources, a change in circumstances beyond their control under the subsection".
In Fomin (supra) the Tribunal held that the depletion of the Respondent's funds was a substantial change of circumstances but not a change beyond their control:
"16. The real issue here is whether this change was beyond the control of the respondents. And in my view, sympathetic as I am to the respondents' situation, it was not. The immediate cause of the depletion of the respondents' funds was the fact that they were inadequate in the first place. One must then go back to ask whether the inadequacy of the funds was itself beyond their control. If a migrant brings inadequate funds into Australia because he/she has received misleading, inaccurate or inadequate information as to the cost of living here or as to some other relevant aspect of Australian life, then it could well be said to be beyond their control. But this is not the case here. The respondents were aware, or should have been, that the funds they were bringing into Australia were inadequate to last them any substantial time, given the cost of living here".
The Applicant had arrived in Australia with the expectation that he would be able to obtain employment quickly. In his evidence to the SSAT, he made no enquiries with any person or organisation in Australia prior to migrating here, as to the prospect of finding work immediately. Therefore, the Respondent contended that his inability to find employment in his professions is not a change in circumstances that was beyond his control as noted in Allahwerdi and Secretary, Department of Family and Community Services [2000] AATA 15 and Secretary, Department of Family and Community Services and Ewais [2000] AATA 487. The fact that the Applicant made a decision to live in Australia was a matter of choice and a risk that he was prepared to take. This was noted in Shaikh and Secretary, Department of Social Security (AAT 12785, 8 April 1998).
The Respondent noted that the Applicant has been working as a telemarketer (T8/31) and stocktaker till 23 April 2002 (T8/32). He was also involved in a business which provided interpreting and tuition services (T8/31) which gave him a modest profit while working from 2 July 2001 to 30 April 2002 (T9/40). His treating doctor has noted in a medical certificate dated 29 April 2002 that he was capable of working at more than eight hours per week (T11/54). Overall, the Respondent contended that the Applicant's recent diagnosis of depression does not prevent him from looking for work or performing work.
The Applicant had contended that his depression has depleted his available funds to the point where he is financial hardship (T8/24). The Respondent disagreed, given that his treating doctor bulk bills for his consultations and has been given sample packs of medication which he is not required to pay (T21/95). As well, the Applicant had stated to the SSAT that his depression was 'fairly well controlled' and it did not prevent him from functioning well on a day-to-day basis or looking for work (T2/8).
The Respondent also contended that the change in the immigration laws which required the Applicant to arrive in Australia before 26 May 2001 thereby resulting in less funds than he might otherwise have had, should not constitute a change in circumstances for the purposes of section 739A(7) of the Act. The Tribunal was referred to Singh and Kaur (supra).
The Respondent further contended that to pay the Applicant for the period in question when he has suffered no substantial changes in his circumstances which were beyond his control would frustrate the purpose and intention of the amendments to the legislation.
It was submitted by the Respondent that the harsh reality is that the introduction of section 739A is the deliberate expression of Parliamentary intention that new arrivals to this country will not be a burden on the public purse, unless there exists some substantial change in their circumstances beyond their control, which would warrant the making of an exception to the general rule. It was never the intention of Parliament that this exception should extend to new arrivals, of whatever age group, who find themselves in impecunious circumstances purely as a result of their own lack of forethought. Such is the case with the Applicant.
FINDINGS
In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.
'Special benefit' has been described as a payment of last resort under the Act made to people who are otherwise ineligible for a pension: see Secretary Department of Social Security v Secaraand Others (1998) 89 FCR 151 at 153. It is only payable where the person is unable to earn a sufficient livelihood because of age, physical or mental disability or domestic circumstances or for any other reason: section 729(2)(e) of the Act.
However, a newly arrived resident must wait for a period of two years before being eligible for special benefit. Where, however if the person has suffered a substantial change in circumstances beyond his or her control the waiting period may be waived pursuant to section 739A(7) of the Act.
The Tribunal then turned to consider if the Applicant had suffered a substantial change in his circumstances.
The Applicant's case was not that he had suffered a suffered a substantial change in circumstances in the nature of severe depletion of his funds but rather, that his development of a psychiatric condition was the basis of the substantial change in his circumstances. The psychiatric condition had been brought about by his inability to find work.
The evidence before the Tribunal in this regard was that the Applicant had no work from the end of November 2001 and that from about February 2002 he began to feel depressed. He was frustrated at being unable to work in his chosen field as an interpreter, or as an engineer.
On 29 April 2002 the Applicant went to see Dr Kheray, and the doctor gave him some relaxation tapes.
On the same day the doctor completed a medical certificate (T11/54) in which he said the Applicant was unfit for work from 29 April 2002 to 29 July 2002 due to 'severe depression active', but recorded him as then able to work for more than 8 hours per week.
The doctor wrote in his report of 18 May 2002 (Exhibit A3):
"This is to state that Rakesh Sani presented to me on 29/4/02. According to history given he has been finding difficulty to cope lack of concentration, self-esteem and insomnia since February 2002.
On examination he was very anxious, irritable and poor eye contact. His main reason for above problems is undue delay by authority to recognise his overseas qualifications. He was shocked to find out that his 10 years experience of interpreting at different institutes in New Zealand, especially working for Auckland High Court and Government Institutes was not recognised. The depression has caused him financial hardship and affected his capacity severely to work. Rakesh has tried for many jobs as an Engineer but has been unsuccessful so far.
On 6/5/02 his condition got worse and was put on antidepressants medications and advised for counseling. A final diagnosis of Bipolar Disorder (i.e. severe anxiety with depression) was made as the things happening are beyond his control."
The Applicant saw the doctor some three or four times, and, on 6 May 2002, was given some samples of Zoloft. After about two weeks the Applicant began to feel better. The doctor encouraged the Applicant to continue applying for jobs. He did not regard the Applicant's condition as so severe as to refer him to a psychiatrist. Even though the Applicant does not presently feel '100 per cent', he said that he expected to be taken off the medication shortly.
The advocate for the Applicant had relied on Zoarder (supra). There the foundation claimed for relief was twofold, namely a rapid and unanticipated depletion of his funds upon the new resident's arrival in Australia, and a consequential severe anxiety state which detrimentally affected his language and communication skills in Australia, and thus his employment opportunities in Australia.
In this case, however, the evidence was that the Applicant remained available for work after November 2001 but that no jobs were available over the summer. He began experiencing symptoms of depression in February 2002 and said he did not feel like doing anything. He did not, however seek medical assistance until the end of April 2002. On seeing a doctor for the first time (Dr Kheray) he was advised to keep looking for a job as he had been doing. On 6 May the doctor, who is not a psychiatrist, diagnosed Bipolar Disorder and gave him some medication. About two weeks later the Applicant said he started to feel better. Dr Kheray had found him 'unfit for work' for three months from 29 April 2002. On the basis of the first examination he found him to be depressed and this had caused him financial hardship and had 'affected his capacity severely to work.'
The Applicant had produced to Centrelink in support of his claim receipts for interpreting he had undertaken (T11/69-70). These would suggest he worked:
"Purchase #AM9.30 23/01/2002 $75.00
Purchase #AM11.00 25/01/2002 $50.00
Purchase #PM 12:30 04/02/2002 $50.00
Purchase #11 AM 06/02/2002 $50.00
Purchase #PM3 11/02/2002 $50.00
Purchase #11 AM 19/02/2002 $50.00
Purchase #11:30 AM 22/02/2002 $65.00
Purchase #11:30 AM 22/02/2002 $45.00
Purchase #PM 12 05/03/2002 $50.00
Purchases #PM 3:30 11/03/2002 $50.00"
Although he could not recall if he had done any interpreting in April 2002 his bank statement (T11/53) also shows three deposits which may have been for interpreting services.
He also worked for two days in April doing stocktaking.
There was evidence that he applied for jobs during this period. On 11 February 2002 he was refused a job at Bell Electric Products (T11/67). On 4 April 2002 he was advised he was unsuccessful in applying for a position with the Canadian Consulate General. On 17 April 2002 (T11/73) he was refused a position by Techstaff. On 20 April he applied to Management Search Australasia (T11/74). (No further documentary information is available as these documents were lodged with Centrelink on 10 May 2002.)
His doctor advised him to continue looking for work, and he told the Tribunal that he did. He had not wanted to do more telemarketing as he had done the previous year because it was so boring and he felt he was over qualified.
The Tribunal accepted that the Applicant arrived in Australia expecting his qualifications to be recognised so he could work as an interpreter and that he was shocked to discover his experience and qualifications were not recognised and that he would need to sit a test to be accredited. He made this discovery soon after he arrived in Australia, but nonetheless was able to undertake interpreting and other jobs from almost immediately after his arrival.
The Tribunal has no difficulty accepting that the lack of work over the Christmas period was distressing for the Applicant. He nonetheless continued to apply for jobs. The Tribunal also has no trouble in accepting that continual rejections for jobs was also debilitating to the Applicant. Nonetheless, he continued to undertake interpreting jobs throughout at least January to March 2002. This was his preferred field of work and his evidence was that he wanted more work if it was available.
The Tribunal had been referred to Zandieh-Nadem & Anor and Secretary, Department of Family and Community Services (2000) 104 FCR 138, where the Federal Court considered the Applicants' significant deterioration in health after arrival in Australia could be considered under section 739A(7) of the Act. The Tribunal also noted that that case involved the applicants' increased expenditure to purchase medication and other medical treatment. That was not the situation here as the Applicant received free samples of the medication and the doctor bulk-billed.
The Tribunal could not find that the Applicant's 'depression' was a substantial change in circumstances because that condition did not prevent him working or seeking employment, nor was there evidence of an inability to otherwise function during the period he was so suffering.
The Tribunal has no doubt that the Applicant has been disappointed by his lack of employment in his new country. However, his evidence led the Tribunal to the view that he did not make adequate enquiries about his employment prospects in his preferred field prior to leaving New Zealand. He is qualified in a number of fields and the Tribunal accepts that it may be demeaning for him to have to pursue employment in areas in which he would prefer not to work.
The Tribunal does not find that the Applicant has suffered a substantial change in circumstances beyond his control pursuant to section 739A(7) of the Act.
DECISIONThe Administrative Appeals Tribunal affirms the decision under review.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: H Sim .....................................................................................
AssociateDate of Hearing 21 October 2002
Date of Decision 13 December 2002
Solicitor for the Applicant Jackie Finlay
Advocate for the Respondent George Lozynsky
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Administrative Discretion
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Constitutional Validity
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