Santini and Secretary, Department of Family and Community Services

[2002] AATA 844

DECISION AND REASONS FOR DECISION [2002] AATA 844

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/50

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      MARCO SANTINI  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date26 September 2002

PlaceHobart

Decision      The decision under review is affirmed.             
   (Sgd A F Cunningham)
  Part-Time Member
CATCHWORDS
 Social Security – age pension – overseas claim – agreement between Australia and Italy – qualifying period of 10 years not met.
Social Security Act 1991 – s43(1), Article 7

REASONS FOR DECISION

26 September 2002           Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by a Centelink officer on 16 October 2001 and subsequently affirmed by an authorised review officer on 6 July 2001 rejecting the applicant's claim for age pension lodged 8 June 2000.   The decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 7 March 2002.

2. As the applicant is currently residing in the Philippines and unable to attend the hearing, both parties consented to the Tribunal deciding the matter on the basis of the written material before it. This included the T documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, and correspondence from the applicant dated 12 May 2002, 28 May 2002, 18 June 2002 and 6 August 2002.

3. The decision to reject the applicant's claim for age pension was made on the basis that the applicant did not have the requisite 10 years of qualifying residence in Australia at the time of lodging his application.

4. In the applicant's letter of appeal to the Tribunal, he queried why the SSAT failed to take into account the years that he worked in Australia "all the while paying taxes".  The applicant went on to list some of the work locations in Australia and stated "therefore it is not correct to unjustly deny the years of work.   There ought to be a way of settling accounts according to human rights …".

5. In a further letter dated 28 May 2002, the applicant claimed that there was an error in the calculation by Centrelink of his working periods in Italy which were not the 2 years and 10 months assessed.     The applicant listed the periods when he claimed that he worked in Italy as follows:

   01.03.53 to 30.06.53          =         15 weeks      =        4 months
   03.07.57 to 01.12.58          =         17 months
   01.08.59 to 30.09.59          =         9 weeks        =         2 months
   01.01.89 to 31.12.85          =         52 weeks      =         12 months.

6. The applicant maintains that his total working period in Italy is not the 2years, 10 months attributed to him by Centrelink, but 3 years, 8 months, and that in addition he worked between 25.02.80 to 09.05.08 (presumably should read 09.05.80) when he was residing in the Philippines.

7. In further correspondence, the applicant states that he hopes that the matter will be "happily concluded as soon as possible with a positive outcome" and further, that "the Tribunal will be wise in allowing each human being's right to respect work regulations and not eliminate them with harsh rules".
   Legislation   

8. The Tribunal must decide the applicant's claim for an age pension in accordance with the applicable legislation.   The legislation is contained in the Social Security Act 1991 ("the Act").   Section 43(1) sets out the qualifying provisions for an age pension:

   "43(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
   (a)      the person has 10 years qualifying Australian residence;
   (b)      the person has a qualifying residence exemption for an age pension;

   (c) the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;

   (d)if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997."

9. The Reciprocal Agreement between Australia and Italy contained in Schedule 3 of the Act, makes provisions for a person to combine their Italian contributions under the social security laws of Italy for an Italian benefit with a period of Australian residence in order to meet the 10 years qualifying period.

   "ARTICLE  7
   Totalisation of Periods of Residence and Periods of Contributions
   1. Where a person to whom this Agreement applies has accumulated:
   (a)      a period of residence in Australia that is:

   (i) less than the period required to qualify him or her, in respect of residence, under the social security laws of Australia for an Australian benefit; and

   (ii)equal to or greater than the minimum period identified in accordance with paragraph 4 for that person; or

   (b)      a period of credited contributions that is:

   (i)less than the period required to qualify him or her, in respect of contributions, under the social security laws of Italy for an Italian benefit; and

   (ii)equal to or greater than the minimum period identified in accordance with paragraph 5 for that benefit,

   (iii)and, on the other hand, has accumulated both a period of Australian residence during working life and a period of credited contributions in Italy which, when added together, are equal to or in excess of the required minimum period specified for that benefit by the legislation that is within the scope of this Agreement in relation to the Contracting Party by whom the benefit may be payable, then:

   (c) for the purposes of a claim for that Australian benefit, the last-mentioned period of credited contributions shall be deemed to be a period in which that person was residing in Australia; and

   (d) for the purposes of a claim for that Italian benefit, that period of Australian residence during working life shall be deemed to be a period of credited contributions in Italy.

   2. Where a person to whom paragraph 1 applies:

   (a) has resided continuously in Australia for a period which is less than the minimum period of continuous residence required by the social security laws of Australia for entitlement of that person to an Australian benefit; and

   (b) has accumulated a period of credited contributions in 2 or more separate periods that exceed in total the minimum period referred to in sub-paragraph (a);

   the total of the periods of credited contributions shall be deemed to be one continuous period and, by virtue of sub-paragraph 1(c), a period in which the person was residing continuously in Australia, equivalent to that total."

10. The applicant does not appear to disagree with any of the findings of fact as contained in the decision of the SSAT dated 7 March 2002, apart from details of his working periods of Italy as set out in his letter to the Tribunal of 28 May 2002.   It would appear however, that the applicant has in fact made an error in calculation where states that the total period of 149 weeks equates to 45 months.  The total of 4 months, 17 months, 2 months and 12 months is 35 months which does not equate to 3 years and 8 months as claimed by the applicant.

11. It is noted that the authorised review officer had previously determined that the total of the applicant's Italian contributions amounted to 34 months.

12. From the information contained in the T documents and the material submitted by the applicant, the Tribunal is satisfied as to the following facts.
    Finding of Facts

    (i)that the applicant was born in Italy on 20 August 1935 and worked and paid contributions for various periods between from  around 1.3.53 to 31.12.85, totalling approximately 35 months;

    (ii)the applicant lived in Germany before coming to Australia in 1973 for 14 years;

    (iii)the applicant lived in Australian between 16 November 1973 and 7 April 1978, a total of 53 months;

    (iv)the applicant lived in the Philippines between 1978 and 1980 and returned to Australia on 25 February 1980 departing 9 May 1980;

    (v)the applicant lodged a claim for an Australian pension when in Vitervo, Italy on 27 April 2000;

    (vi)the applicant departed Italy for the Philippines on 10 September 2000.   The applicant holds a temporary for the Philippines and pays a residence permit on a monthly basis.   The applicant is married to a Filipino woman.  

Findings

1. Whilst in earlier decisions there seems to have been some confusion as to the question of the applicant's Italian citizenship  and its relationship to qualification for an age pension, and the status of his residence in the Philippines, it was clear from the decision of the SSAT that the determining issue was whether the applicant meets the 10 years qualifying period for an age pension by combining his period of Australian residence and his Italian contributions.

2. There is no longer any issue as to the applicant's Italian citizenship and residence.   This Tribunal accepts, as did the SSAT, that the applicant's claim for an age pension was made when he was residing in Vitervo, Italy.

3. On the basis of the material contained in the T documents, and that submitted by the applicant in his letter of 28 May 2002, the Tribunal finds that the period of the applicant's Italian contributions is at most 35 months, being 4 months between 1 March 1953 and 30 June 1953, 17 months between 3 July 1957 and 2 December 1958,  2 months between 1 August 1959 and 30 September 1959; and  12 months between 1 January 1989 and 31 December 1989.     When this is added to the applicant's period of residence in Australia between 16 November 1973 and 7 April 1978 being 53 months, totalling 88 months in all, which equates to 7.3 years and is almost 3 years short of the qualifying period of 10 years.

4. As remarked by the SSAT in their decision, even if the additional period between 25 February 1980 and 9 May 1980 when the applicant returned to Australia for a temporary stay was included, it is not of sufficient duration to meet the qualifying period of 10 years.

5. The Tribunal has no option but to affirm the decision under review on the basis that the applicant fails to meet the requisite qualifying period for Australian residence.

   I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

   Signed:         .....................................................................................
     Administrative Assistant

   Date/s of Hearing  Matter decided on the papers.
   Date of Decision  26 September 2002