Sarkar and Department of Family and Community Services
[2000] AATA 644
•2 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 644
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N99/1584 &
GENERAL ADMINISTRATIVE DIVISION ) N99/1585
Re HARAM SARKAR & TAPATI SARKAR
Applicant
And DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms S. M. Bullock, Member
Date2 August 2000
PlaceSydney
Decision The decision under review is set aside and in substitution therefor, the Tribunal decides that: 1. Mr and Mrs Sarkar satisfy subsection 739A(1) of the Social Security Act 1991 and therefore the two year newly arrived resident's waiting period does not apply. Mr and Mrs Sarkar qualified for Special Benefit which should be paid from the date of the claims, the subject of review. 2. The matter is remitted to the Secretary, Department of Family and Community Services to determine the correct rate of Special Benefit and the period for payment.
[Sgd] Ms S Bullock
Member
CATCHWORDS
SOCIAL SECURITY – Special Benefit – newly arrived resident's waiting period – substantial change in circumstances beyond a person's control
Social Security Act 1991, section 729, 732, 739A
Re Secara and Secretary, Department of Social Security (1998) (AAT 12702, 12 March 1998)
Secretary, Department of Social Security v Secara (1998) 51 ALD 481
Re Secretary, Department of Social Security and Underwood (1991) 25 ALD 343
Re Chelechkov and Secretary, Department of Social Security (1998) 26 AAR 321
Re Ubu-Zama and Secretary, Department of Social Security (1998) (AAT 12961, 5 June 1998)
Re Tadros and Secretary, Department of Social Security (1998) (AAT 12649, 26 February 1998)
Re Secretary, Department of Social Security and Singh (1998) (AAT 12667, 2 March 1998)
Re Shaik and Secretary, Department of Social Security (1998) (AAT 12785, 8 April 1998)
Re Secretary, Department of Social Security and Lugovsky (1992) (AAT 13058, 3 July 1998)
Re Secretary, Department of Social Security and Seshachalam (1999) (AAT 73, 5 February 1999)
Re Secretary, Department of Social Security and Fomin (1998) (AAT 12703, 12 March 1998)
REASONS FOR DECISION
Ms S Bullock, Member
This matter is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by Haram and Tapati Sarkar ("the Applicants") of a decision of the Social Security Appeals Tribunal ("SSAT") made on 22 September 1999 ("T2"). The SSAT decided that, although sympathetic to Mr and Mrs Sarkar's circumstances, they had not suffered a substantial change in their circumstances which was beyond their control and as such, there could be no exercise of the discretion contained in subsection 739A(7) of the Social Security Act 1991 ("the Act") to exempt them from the newly arrived resident's waiting period. The SSAT therefore affirmed the decision of Authorised Review Officer ("ARO") of the Department of Family and Community Services ("the Department") that Mr and Mrs Sarkar were ineligible for the grant of Special Benefit. The ARO's decision was made on 26 August 1999 (T45) and the Applicants were informed of this decision by letter of 27 August 1999 (T47). The original decision to reject Mr Sarkar's claim for Special Benefit was made by a delegate of the Department on 29 July 1999 and Mrs Sarkar's application for Special Benefit was rejected on 12 August 1999. The reason for rejection of the Applicant's claims for Special Benefit was that they were subject to a two year newly arrived resident's waiting period (T29A, T40).
A hearing was held before the Tribunal in Sydney on 4 May 2000. Mr Sarkar attended the hearing and provided oral evidence. He was assisted by an interpreter in the Bengali language. The Applicant's were represented by Ms M Sripathy, solicitor from the Welfare Rights Centre, Sydney. The Respondent, the Department, was represented by Mr B Slattery, departmental advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T49) and the following exhibits:
Exhibit A1 Applicant's Statement of Facts and Contentions. 10 January 2000
Exhibit A2 Letter to Mr Sarkar from K Chumintarachak, for the First Secretary of Immigration, Australian Embassy, Bangkok. 11 September 1995
Exhibit A3 Letter from Mr M Thoener, Second Secretary (Immigration), Australian Embassy, Bangkok. 5 January 1996
Exhibit A4 Letter from Mr P Flierl, Second Secretary (Immigration), Australian Embassy, Bangkok. 13 August 1996
Exhibit A5 Letter from H Pongatcha, For the Second Secretary (Immigration), Australian Embassy, Bangkok. 8 January 1998
Exhibit A6 Letter from H Pongatcha, For the Second Secretary (Immigration), Australian Embassy, Bangkok. 27 January 1998
Exhibit A7 Statement of Mr and Mrs Sarkar's expenditure. 4 May 2000
Exhibit A8 Commonwealth Parliamentary Library Research Note to 1999/2000 regarding Casual Employment. 24 August 1999
Exhibit A9 Letter from Dr N L Darvey, Senior Lecturer and Researcher, University of Sydney and Plant Breeding Institute. 16 February 2000
Exhibit R1 Respondent's Statement of Facts and Contentions. 1 May 2000
Issues
The Respondent accepts that Mr and Mrs Sarkar satisfy the qualification requirements for Special Benefit. What is disputed is whether or not Special Benefit is payable to Mr and Mrs Sarkar.
In order for Mr and Mrs Sarkar to be paid Special Benefit, a determination must be made as to whether or not, in the circumstances of them migrating to Australia on 13 March 1999:
a) There has been a substantial change in circumstances beyond the Applicants' control; and if so
b) whether or not the Applicants are subject to a newly arrived resident's waiting period.
LegislationA determination of this matter requires consideration of the provisions of the Social Security Act 1991 ("the Act").
The qualifications for Special Benefit contained in part 2.15 of the Act are contained in subsections 729(1) to (3) of the Act. Special Benefit is generally not awarded where other social security income support payments are being received by a claimant. As relevant, section 729 states:
"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.
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
(ba) …
(bb) the person is not disqualified for a PP (partnered) for the period solely because of the operation of section 500C (unemployment due to industrial action); and
(c) the person is not disqualified for a newstart allowance for the period because of the operation of one or more of the following:
(i)…
(ii) section 596 (unemployment due to industrial action);
(iii) section 597 (move to area of lower employment prospects);and
(d) if the person is qualified for a newstart allowance but the allowance is not payable to the person for the period - that result is not produced because of the operation of one or more of the following:
(i) section 625 (person failing to enter into a Newstart Activity Agreement);
(ia) section 626 (person failing to comply with a Newstart Activity Agreement);
(ii) section 624 (person failing to satisfy activity test);
(iii) section 628 (unemployment due to voluntary act);
(iv) section 629 (unemployment due to misconduct);
(v) section 630 (refusal of job offer);
(va) section 630AA (failing to provide information);(vi) section 631 (person failing to comply with notification requirement);
(vii) …
(viii) section 633 (seasonal workers);(ix) section 634 (move to area of lower employment prospects); and
(da) the person is not disqualified for a youth allowance for the period because of the operation of:
(i) …
(ii) section 544 (requirements relating to Youth Allowance Activity Agreements); and
(db) the person is not disqualified for an austudy payment for the period because the person fails to satisfy the activity test within the meaning of section 569; and
(dc) youth allowance is not payable to the person for the period andthat result is not because of the operation of:
(i) section 550 (application of activity test non-payment period); or
(ii) section 553B (move to an area of lower employment prospects); or
(iii) section 565C (failure to comply with section 561C, 1304 or 1305 notices); and
(dd) austudy payment is not payable to the person for the period and that result is not because of the operation of:
(i) section 576 (application of activity test non-payment period); or
(ii) section 588D (non-compliance with section 586C notification obligations); 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
(ii) has a qualifying residence exemption for special benefit; or(iii) is the holder of a subclass 820 visa - Extended eligibility (spouse); or
(iv) is the holder of a subclass 826 visa - Interdependency; 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
(fa) the person is in Australia throughout the period; and
729 (3) The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period."
Subsection 732 (1)(da) states that Special Benefit may not be payable because, amongst other things, the claimant is subject to a newly arrived resident's waiting period.
Section 739A of the Act deals with a newly arrived resident's waiting period and, as relevant, states:
"739A Newly arrived resident's waiting period
739(1) Subject to this section, a person who, on or after the commencement of this subsection:
(a) enters Australia; or
(b) becomes the holder of a permanent visa; or(c) becomes the holder of a subclass 820 visa - Extended eligibility (spouse); or
(d) becomes the holder of a subclass 826 visa - Interdependency; or
(e) becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;
is subject to a newly arrived resident's waiting period.
739A(2) Subject to this section, if, immediately before the commencement of this subsection, a person was the holder of:
(a) a subclass 820 visa - Extended eligibility (spouse); or
(b) a subclass 826 visa - Interdependency; or(c) a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;
the person is subject to a newly arrived resident's waiting period.
…739A(5) If:
(a) a person is subject to a newly arrived resident's waiting period; and
(b) neither subsection (3) nor (4) apply to the person;the waiting period starts on the day on which the person:
(c) first entered Australia; or
(d) becomes the holder of a permanent visa;whichever occurs last, and ends on the day after the person has been in
Australia for a period of, or periods totalling, 104 weeks after that day.
…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."
Thus, Mr and Mrs Sarkar are subject to a waiting period of 104 weeks from the date they entered Australia, unless they fall into the exemption as contained in subsection 739A(7) of the Act.
BackgroundThe following information is provided by way of background and the facts contained herein are not in dispute.
Mr Sarkar was born on 31 December 1955 and Mrs Sarkar was born on 9 June 1970 (T22). Mr and Mrs Sarkar were married on 4 July 1991 in Bangladesh.
In October 1994, Mr and Mrs Sarkar first applied to migrate to Australia and in September 1995, were advised that their application was likely to be approved subject to certain requirements (Exhibit A2).
In January 1996, Mr and Mrs Sarkar found that their application for migration to Australia had been put on hold due to the limited number of places available (Exhibit A3).
In August 1996, Mr and Mrs Sarkar's application was revived (Exhibit A4).
On 8 January 1998, Mr and Mrs Sarkar's application was approved (Exhibit A5), only to be cancelled once more on 27 January 1998 because their newly born third child had not been included in the original application and visa documents (Exhibit A6).
On 10 June 1998, the Sarkar family's entry into Australia was approved and the family received new visas which included those for the children: Himaderi Shekhar Sarkar; Sharmistha Sarkar; and Sudipta Shekhar Sarkar. The approval letter contained considerable information, including advice in relation to working in Australia. The letter noted that although the visa provided to Mr and Mrs Sarkar allowed them to work in Australia, it provided no guarantee of employment, nor did it guarantee that any overseas qualifications would be accepted. In relation to social security payments, the letter further advised that new migrants to Australia must wait two years before they could receive most social security income support payments. There was a further notation that Special Benefit was the only form of government welfare assistance which might be payable to people during the two year waiting period, however, Special Benefit was only available to new migrants on a very restrictive basis that is, if there had been a substantial change in circumstances beyond the person's control. Mr and Mrs Sarkar were advised in writing that an inability to find employment or running out of money are not sufficient reasons to qualify for the Special Benefit (T8).
A condition of the grant of the visa and approval for migration was that Mr and Mrs Sarkar and their family enter Australia by 20 March 1999.
On 13 March 1999, the Sarkar family arrived in Australia (T22).
Mr Sarkar has a Master of Science (Agriculture) from Bangladesh Agricultural University, gained in 1981 (T3).
In Bangladesh, Mr Sarkar was the Director-General of the Bangladesh Rice Research Institute from 15 March 1980 to 10 February 1999.
On 15 April 1999, through a Bangladeshie contact in Australia, Mr Sarkar obtained paid research work at the Plant Breeding Institute of the University of Sydney at Cobbity. Work was on a casual basis. In July 1999, Mr Sarkar was given one week's notice that the position would cease as the project he was working on had come to an end and there were no further funds.
On 26 July 1999, Mr Sarkar claimed Special Benefit (T22). Mr and Mrs Sarkar had previously unsuccessfully claimed Special Benefit on 22 April 1999 (T15, T16) but were refused because of the newly arrived resident's waiting period. On 9 August 1999, Mrs Sarkar claimed Special Benefit (T32).
On 11 August 1999, Mr Sarkar's application for Special Benefit was rejected (T36) and Mrs Sarkar's claim was also rejected on 26 August 1999 (T43).
On 27 August 1999, the ARO affirmed the decision in respect of both Mr and Mrs Sarkar's claims. On 13 September 1999, Mr Sarkar commenced part-time work as a Customer Service Assistant with Officeworks Superstores Pty Ltd. At the time of hearing, Mr Sarkar was working a minimum of 15 hours per week, initially at an hourly rate of $11.05 which increased to $12.27 per hour. Mr Sarkar's gross weekly fortnightly wage would often fall below the maximum rate of Special Benefit which would be payable for himself and Mrs Sarkar of $294.70 each.
Mrs Sarkar receives family allowance for the three children of approximately $440.00 per fortnight.
Mr and Mrs Sarkar appealed to the SSAT on 16 September 1999 and their cases were heard together with a determination of 22 September 1999 affirming the ARO's decision.
On 14 October 1999, Mr and Mrs Sarkar lodged an Application for Review to the Tribunal.
Evidence of Mr Sarkar
Mr Sarkar explained to the Tribunal that his plans to come to Australia had commenced in 1994 with applications being made in October of that year. It was a costly process, Mr Sarkar explained, involving payments for documents, health checks and the costs incurred in travelling to the capital city, Dakar to lodge the payments and deal with any other of the requirements to expedite their migration process.
While Mr Sarkar was well employed and relative to the population in Bangladesh, very affluent, he saw the opportunity of coming to Australia as a means of furthering his studies and his career. Mr Sarkar was earning approximately $200.00 Australian per month. His family lived in a government compound and Mrs Sarkar had two paid assistants for help with household and other duties. Mr Sarkar told the Tribunal that he was well respected, and was not forced to leave his position.
The process involved in Mr and Mrs Sarkar's migration to Australia was fraught with many disappointments, Mr Sarkar told the Tribunal. In this regard, Mr Sarkar referred to the letter of 5 January 1996 which indicated that although their migration to Australia had seemingly been approved, because of the strong growth of applications for migration, the number of available places for migration to Australia was limited and Mr and Mrs Sarkar were not able to migrate until such time as further places became available. Mr Sarkar told the Tribunal that this news had "broken his heart" (Exhibit A3).
When eventually the family's application was revived, the whole process of undergoing health checks, completing documentation which was costly in itself, paying the English language course supplement and travelling to Dakar, some 50 kilometres, had to be repeated again at great financial cost, let alone the emotional stress this process caused. The English language course supplement in itself cost $3,500 taka, with an exchange rate of 30 taka to the Australian dollar. Having received news on 8 January 1998 that Mr and Mrs Sarkar's application for permanent entry to Australia had been approved, once again the family's hopes were dashed when, on 27 January 1998, Mr Sarkar was informed by the Australian Embassy in Bangkok that visas had to be cancelled because there had been no notification of the change in circumstances of the family in that another child had been born (Exhibit A5 and Exhibit A6). The entire process had to be repeated with the medical examination for the entire family and, once more, there was considerable expense both financial, in energy and in time.
In all, the family had to go through the process three times. However, on 10 June 1998, there was great excitement when Mr Sarkar received formal notification from the Australian Embassy in Bangkok that the family's application for permanent entry to Australia had been approved (T8). A further letter of that same date indicated that Mr Sarkar and his family must enter Australia before 20 March 1999.
Mr Sarkar acknowledged that he was informed and understood that there was no guarantee of employment in Australia, nor could they avail themselves of income support from the Department because of the newly arrived resident's two year waiting period. Mr Sarkar told the Tribunal that he contacted some Bangladeshie colleagues in Australia concerning employment prospects and through a contact, became aware of Dr N L Darvey, Senior Lecturer and Researcher at the University of Sydney, Plant Breeding Institute. Mr Sarkar told the Tribunal that he had discussions not only with his contact but with Dr Darvey in relation to his skills and qualifications and the possibility of employment and research in Australia.
Mr Sarkar told the Tribunal that having finally gained the approval to migrate to Australia, a decision had to be made. It was a "balancing act", Mr Sarkar noted, trying to look at the various options open to him and his family, including whether or not he should remain in Bangladesh where his life was comfortable, his future seemingly secure and the lifestyle very affluent or leave this behind and come to Australia with no guarantees of employment, depleted finances as a result of all of the repeated requirements in order to gain approval to enter Australia, but with the positive side of having the possibility of extending his knowledge and skills and progressing in his career. Mr Sarkar told the Tribunal that he decided to take the risk and migrate to Australia. He brought with him $US5,000.00 and by the time he arrived in Australia, this was approximately $US4,000.00 (Exhibit A7).
In Australia, Mr Sarkar and his family stayed initially, for approximately one week, with friends but then Mr Sarkar arranged rental accommodation. Mr Sarkar stated that he had to purchase some essentials for his family to exist, including a refrigerator, furniture, clothes and bedding for the family. All of this cost approximately $1,000.00. This expenditure was extremely frugal and only involved the purchase of necessities. It was very difficult, Mr Sarkar explained to the Tribunal, for his wife and children to exist like this, given their previous affluent lifestyle in Bangladesh.
Mr Sarkar provided a statement of expenditure to the Tribunal in which he indicated that his essential purchases and payment of rental bond, telephone, electricity, security and other miscellaneous purchases amounted to $6,241. What he had brought from Bangladesh was in fact $6,150.
Fortunately for Mr Sarkar, because he had undertaken some research about employment possibilities before he arrived in Australia, by April of 1999, he had obtained some casual work with Dr Darvey at the Plant Breeding Institute at Cobbity. This process of employment had commenced with Mr Sarkar within the first week of arriving in Australia contacting Dr Darvey and providing him with a copy of his curriculum vitae. Initially, Mr Sarkar worked for the Plant Breeding Institute on a voluntary basis. This provided him with the opportunity of assessing for himself whether or not he would fit in to such an environment and also gave Dr Darvey the opportunity to assess him, his skills and qualifications for further employment or, indeed, research. Mr Sarkar was also provided with the opportunity to familiarise himself with the Australian research environment. Mr Sarkar told the Tribunal that he considered that the work there was not so difficult and he became confident that he could fit in. Mr Sarkar stated that he was in fact offered paid casual employment from April 1999.
In a letter to the Sydney Welfare Rights Centre, Dr Darvey explained that the Plant Breeding Institute is a key research Institute within the University of Sydney. It has in excess of 50 people, comprising two thirds staff and one third post-graduate research students. Many of those students, Dr Darvey noted, received their stipends from industry grants, both from the public and private sector. Researchers can only apply for grants at various times through the year and, if successful, would then be in a position to obtain research scholarships. The probability of receiving a scholarship is much higher, Dr Darvey explained, if the potential student is known to the Institute and has been assessed as a visiting scholar, a part-time research assistant or as a voluntary worker. Specifically, in relation to Mr Sarkar, Dr Darvey noted that Mr Sarkar had an excellent research history in the area of rice genetics and breeding as well as a long and detailed publication record. Dr Darvey further noted that with Mr Sarkar's credentials, he seemed like "an excellent prospective research student". Dr Darvey explained that, while not providing any guarantees to Mr Sarkar, he advised him that there were a number of possible studentships at the Institute and that if he were interested, then he could be provided with a limited amount of casual labour while the Institute assessed his potential for such scholarships. In this vein, Mr Sarkar worked for a number of weeks in the tissue culture laboratory and subsequently within the cereal breeding program. Dr Darvey decided that Mr Sarkar did not have the level of expertise for a tissue culture position but he then worked as a casual within the breeding program. This type of work was, Dr Darvey explained, more in keeping with Mr Sarkar's previous research expertise.
In the meantime, preliminary approval had been gained for a research scholarship at the Institute to be offered for work on the hybrid breeding of durum wheat and triticale. Dr Darvey noted that there was a reasonable expectation that the proposal would be finally accepted and because the Institute was satisfied with Mr Sarkar's performance in this area, he would be the person to whom the scholarship would be offered. Unfortunately, the full proposal for the research scholarship program was rejected by the Grains Research and Development Corporation. This meant that Mr Sarkar would not be offered the scholarship as had been expected. Further, there was a difficulty in that the funds for casual work had run out and the Institute was not only unable to offer Mr Sarkar the scholarship as had been expected, but it could not keep him on as a casual worker. Dr Darvey concluded:
"In summary, Mr Sarkar could have reasonably expected to obtain a scholarship at our Institute during 1999; however circumstances were such that this did not occur, even though there is a likelihood that he would be selected when and if such a scholarship becomes available in the future. Many colleagues from Bangladesh have eventually found work at our Institute, especially after continued periods of voluntary or part-time employment. Had Mr Sarkar been able to live closer to the Institute, we could have provided him with additional casual labour from time to time, until a scholarship relevant to his area of expertise became available. However, the cost of travel to and from our Institute was a significant factor, especially as there is no public transport between Campbelltown station and our Institute at Cobbitty. I personally believe that Mr Sarkar deserves consideration as a special case for welfare payments, as he has skills that will be beneficial to our country once the right circumstances for employment become available." (Exhibit A9)
Mr Sarkar explained to the Tribunal that his heart broke yet again when he learned that the scholarship which he had every expectation of obtaining, was not able to be offered because the research proposal was not accepted by the Grains Research and Development Corporation despite there having been an acceptance by that organisation of the preliminary proposal. Mr Sarkar stated that everything had seemingly gone to plan until this event. He was then not able to avail himself of further casual work should it become available at the Institute because the person with whom he used to obtain transport to and from the Institute had left. Because of the cost of getting to the Institute when he had no car and there being no public transport, Mr Sarkar had to try to obtain employment elsewhere.
In the final analysis, Mr Sarkar tried to obtain employment elsewhere, and has sent his curriculum vitae to a number of universities and research bodies, including Charles Sturt University. He did try other employment outside his field and this is why he was able to successfully obtain a position with Officeworks.
Mr Sarkar concluded that when he made his decision to come to Australia, because he had done some investigation of the employment situation, particularly in relation to research projects, he felt that he would be able to survive for two years. He had friends who had done this and were now doing their PhDs and while he hoped that he would be able to survive he believed, given the information he had obtained, that there was every prospect of him being successful.
Mr Sarkar's current financial situation is precarious, while he earns $500.00 per fortnight after tax and his wife is provided with $449.00 per fortnight in family payment, Mr Sarkar has found that at the time of the hearing, he had not been able to pay the rent of $150.00 per week. Mr Sarkar continues to have no car, although he has a travel concession card as well as a health card. The family currently spends approximately $32.00 per fortnight on electricity, $450.00 per quarter on telephone, although this expenditure had increased just prior to the hearing as Mr Sarkar's father in Bangladesh had died. Unfortunately, he could not afford to go over for the funeral. The childrens' health costs between $25.00 and $30.00 per fortnight, with additional expenditure occurring recently because Mr and Mrs Sarkar's youngest son had fractured his leg and he was requiring specialist orthopaedic surgeon care. The family's food bill per fortnight is approximately $450.00 and there are school costs, although the children attend public school, of about $25.00 to $30.00 per fortnight.
SubmissionsMs Sripathy referred the Tribunal to the purpose of Special Benefit as the final layer of the income security safety net. The inclusion of Special Benefit is a recognition, Ms Sripathy submitted, of the fact that it is not possible to describe in advance every situation in which it might be necessary to alleviate extreme financial hardship, noting the decision of Re Secretary, Department of Social Security and Underwood (1991) 25 ALD 343.
There is no dispute that Mr and Mrs Sarkar satisfy the qualification criteria for Special Benefit as there is no other social security benefit payable to them and they are unable to earn a sufficient livelihood. The issue is whether Mr and Mrs Sarkar are payable because of their being subject to a two year newly arrived resident's waiting period. Although Mr and Mrs Sarkar initially applied to migrate to Australia in 1994, because of the various reasons discussed previously, they were not granted their permanent visas until 10 June 1998, arriving in Australia on 13 March 1999. As such, Mr and Mrs Sarkar are subject to the two year waiting period for newly arrived migrants which first came into effect on 4 March 1997, unless Mr and Mrs Sarkar satisfy section 739A of the Act.
Ms Sripathy directed the Tribunal's attention to subsection 739A(7) of the Act which provides that if in the Secretary's opinion, a person has suffered a substantial change in circumstances beyond that person's control, then the two year waiting period does not apply. Ms Sripathy referred the Tribunal to a number of cases which have considered the meaning of the phrase "substantial change of circumstances beyond the person's control" in the context of the newly arrived migrant's waiting period. A number of cases came together in the Full Federal Court decision Re Secretary, Department of Social Security and Secara (1998) 51 ALD 481. This is a leading authority, Ms Sripathy submitted, on the interpretation of the provision contained within subsection 739A(7) of the Act. For this subsection to apply, the Full Federal Court noted that a migrant must have experienced a "change in circumstances" which is "substantial" and "beyond the person's control".
In relation to what constitutes a "change in circumstances", the Court held that the circumstance cannot be the need for Special Benefit itself, principally because the waiting period amendments assume that a person is otherwise qualified. The Court noted:
"… the change in circumstances must be some event or events, not necessarily "external" to the person, which creates that need where it did not previously exist or if it did previously exist, where it is no longer appropriate to respond to that need by application of the newly arrived resident's waiting period."
Following the reasoning in Secara (supra), Ms Sripathy submitted that even if a person has insufficient funds to survive for two years from the commencement of his or her living in Australia, it does not necessarily follow that a change of circumstances warranting early termination of the waiting period cannot be found in that case. Should a person suffer a change which is substantial, beyond control and which makes it no longer appropriate to continue to require the person to provide for him or herself, the waiting period may be terminated. Ms Sripahty referred the Tribunal to examples used by the Court such as unexpected serious illness, serious accident and loss of employment.
Ms Sripathy contended that the Tribunal should consider the issue of when, in Mr and Mrs Secara's circumstances, there had been a substantial change. In this regard, Ms Sripathy noted that the Federal Court in Secara (supra) agreed with the approach of the then President of the Tribunal who concluded in Re Chelechkov and Secretary, Department of Social Security (1998) 26 AAR 321 that changes in circumstances occurring outside of Australia could be considered, as long as the relevant change was responsible for the migrant's state of poverty in Australia. In Mr and Mrs Sarkar's case, Ms Sripathy submitted that the Australian Embassy's advice to them in January 1996 that their visa application could no longer proceed at that time because of the limited number of places was a substantial change in circumstance (Exhibit A3). Considering Mr and Mrs Sarkar's individual circumstances, Ms Sripathy submitted that this change of Mr and Mrs Sarkar's plans was a substantial change which was beyond their control. It meant that there was a delay in processing their application and they then had to incur further costs including further medicals, the cost of visas and also the English language supplement. By the time Mr and Mrs Sarkar were finally granted their permanent visas in 1998, the legislation in Australia imposing a two year waiting period had come into effect and they were disadvantaged. Though Mr and Mrs Sarkar had knowledge of the new laws in relation to the two year resident's waiting period, Ms Sripathy contended that it was too late to take this into consideration in their decision to continue with their plans to migrate. They had, by 1998, invested so much expectation, energy and their life savings in the applications that it was in fact too late for them to turn back on this decision. This change in circumstances was directly responsible for Mr and Mrs Sarkar's poverty in Australia because with repeated applications and the associated requirements they had expended so much of their money which had been earmarked for their financial wellbeing once living in Australia. Ms Sripathy submitted that the Tribunal must look at not only that objective event of the change in the circumstances in the number of false starts in attempting to migrate to Australia but look at the subjective way in which it affected Mr and Mrs Sarkar.
In Secara (supra), the Court also noted that a change in a person's expectations could constitute a relevant change in some circumstances. Ms Sripathy referred the Tribunal to the Court's discussion where it noted:
"In identifying eligible events or matters as potentially falling within the description "change in circumstances" in my view there is no clear or useful line necessarily to be drawn between a person's expectations and objective events. That is because, in a practical sense, there may be only a difference of degree between them. An intending migrant may have sought to make arrangements for employment upon arrival within Australia. Those arrangements may result in an enforceable contract of employment, or an offer of employment, or a statement of intention to employ the particular person, or a statement from a particular employer about that employer's intentions to offer employment to the prospective migrant specifically or to a number of persons with the prospective migrant's skills and for which that person would be likely to be accepted for employment. It is possible to envisage a spectrum of certainty or uncertainty and from the intending migrant's viewpoint, to describe the arrangement of expectation of employment of greater or less great strength… Accordingly, I do not think that there is any necessary dividing line to be drawn which necessarily excludes expectations from being considered in an appropriate case as providing a foundation for a substantial change in circumstances. In my judgement, the correct proposition is that it will only be by reference to the particular facts and matters pertaining to a particular applicant that it will be possible to determine whether there has been, in terms of s 739A(7) a "change in circumstances" and whether that change is substantial."
Ms Sripathy submitted that while Mr and Mrs Sarkar had knowledge of the two year waiting period, Mr Sarkar had made enquiries before leaving Bangladesh which indicated to him that there was a real possibility and expectation that he would be able to obtain employment, particularly in his related field of endeavour. Within one week of being in Australia, Mr Sarkar's plans were on track and he had made contact with Dr Darvey, was undertaking voluntary work and later on was provided with casual work leading then to a possibility of a scholarship. Ms Sripathy distinguished the circumstances in the particular case of Mr and Mrs Sarkar to those identified in Re Secretary, Department of Social Security and Fomin (1998) (AAT 12703, 12 March 1998) in which the Respondent in that case had arrived in Australia with an inadequacy of funds and unrealistic expectations of the ability to cope. This was not the case in Mr and Mrs Sarkar's situation because, although they did have depleted funds, they had very real and achievable expectations of employment and certainly, Mr Sarkar had embarked on these plans with some success.
Ms Sripathy also noted that although Mr Sarkar initially accepted casual work at the Plant Breeding Institute, this was part of the process of assessing Mr Sarkar as to his suitability. As Dr Darvey had noted in his letter of 16 February 2000, the Institute provided Mr Sarkar with casual labour while the organisation "assessed his potential for such scholarships".
Ms Sripathy also noted that the changing face of the workplace in Australia is that 25% of workers are in casual employment and that this is increasing. Referring the Tribunal to the discussion of this issue in the Commonwealth Parliamentary Library Research Note on casual employment (Exhibit A8), Ms Sripathy noted the fact that there is a significant shift away from the notion of full-time and permanent waged employment as the 'standard' employment arrangement. In the context of the current working arrangements in Australia, the research note concluded that the idea of the 'flexible firm' comprising a secure group of core workers and a peripheral group of temporary out-workers and subcontractors is more and more prevalent.
Acting consistently with Mr Sarkar's reasonable expectations of employment, he subsequently expended money buying various items to establish his family's new life in Australia. The cessation of the casual work and the announcement that the research scholarship in the hybrid breeding of durum wheat and triticale, shattered Mr Sarkar's expectations. This circumstance constitutes a relevant and substantial change, Ms Sripathy submitted. The change was beyond Mr Sarkar's control in that the scholarship, as noted by Dr Darvey, was to be offered to Mr Sarkar and in fact the scholarship project had preliminary approval from the Grains Research and Development Corporation but when the final decision was made, the Corporation rejected the proposal. This decision had substantial impact not only on Mr Sarkar but also on Dr Darvey. The very real impact for Mr and Mrs Sarkar was that it left them in a situation of extreme hardship.
Ms Sripathy submitted that the relevant substantial change in Mr Sarkar's circumstances in Australia which impacted on him was that his unfulfilled expectations regarding his prospects of securing and maintaining appropriate employment suitable to his qualifications were dashed. Further, Ms Sripathy contended that the cessation of Mr Sarkar's employment at Sydney University after three months was in itself a substantial change of circumstances beyond his control. Though the employment was on a casual basis, this certainly should not detract from the issue that he was employed and that the casual employment was part of the process of assessing him for the research scholarship. Further, Ms Sripathy submitted that newly arrived migrants will inevitably be highly represented in any statistical figures accounting for casual employment. Ms Sripathy further contended that in fact Mr Sarkar's arrival in Australia started out as the 'ideal migration story' in that very soon after the family arrived, Mr Sarkar was working in an area for which he was qualified and where there was very real prospect of him obtaining a scholarship in order to expand his field of expertise and enhance his career. Then it all went horribly wrong through no fault of Mr Sarkar's, Ms Sripathy submitted.
Ms Sripathy referred the Tribunal to the beneficial nature of the Act and its purpose to alleviate hardship. In applying the provisions contained in subsection 739A(7) of the Act, a decision maker must keep in context the economic realities that people face, Ms Sripathy submitted. To only concentrate on an interpretation which recognised the change of circumstance being a loss of secure, permanent employment, would deny the reality of the current employment and labour market. This would effectively deny access to the alleviating provisions and discretion contained within subsection 739A(7) of the Act in a circumstance which was specifically identified in Secara (supra).
A newly arrived migrant, such as Mr Sarkar, who had expectations of promptly securing employment to self-support himself and his family who is, in Mr Sarkar's circumstances, then able to find employment which is subsequently lost for reasons beyond his control, has, Ms Sripathy submitted, suffered a substantial change of circumstances beyond his control within the meaning of subsection 739A(7) of the Act. To determine otherwise would place an unduly restrictive interpretation on this provision of the Act which is contrary to the interpretation made in Secara (supra).
Accordingly, in line with the reasoning of the Full Federal Court in Secara (supra), Ms Sripathy contended that Mr Sarkar suffered a substantial change in circumstances beyond his control when his employment ceased and he was unable to obtain adequate alternate employment at a time when he had depleted all the resources he had bought with him in the realistic expectation of being able to continue in that employment. Therefore, pursuant to subsection 739A(7) of the Act, Ms Sripathy submitted that the two year waiting period should be terminated and Mr and Mrs Sarkar would then become eligible for payment of Special Benefit. Ms Sripathy concluded that if Mr Sarkar is found to be qualified and payable for Special Benefit pursuant to subsection 739A(7) of the Act, then Mrs Sarkar has also suffered the same change of circumstances because she is dependent on her husband.
In opening, Mr Slattery confirmed that the Respondent accepts that Mr and Mrs Sarkar satisfy the qualification test for Special Benefit as at the date of claim, the subject of this review. Mr and Mrs Sarkar, however, have also to satisfy the newly arrived migrant's waiting period before Special Benefit is payable. The amendments which dealt with this were inserted into the Act by the Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and other measures) Act 1997, No. 5/1997. The issue before the Tribunal is, therefore, not whether Mr and Mrs Sarkar have satisfied the 'hardship' criteria contained in subsection 729(2)(e) as this is not challenged by the Respondent, but the issue remains that of payability and it is important that the issues are not confused, Mr Slattery contended.
Mr Slattery did not agree with Ms Sripathy's reference to Re Underwood (supra) as support for the proposition of the flexibility inherent in Special Benefit to alleviate extreme financial hardship. In that case, the issue was, Mr Slattery contended, whether Special Benefit was payable to two young children whose parent lacked a visa to qualify for social security payments in her own right. The then President, President O'Connor, found that the children were qualified for Special Benefit and that it should be paid, noting the beneficial nature of the legislation. Mr Slattery referred the Tribunal, however, to the President's comments:
"Thus there is no reason to presume that a child is not covered by the Act if they fulfil all the requirements of, and do not fall into an excluded category of, a provision of the Act."
Mr Slattery contended that the comments by the President should more appropriately be seen in the context of subsection 729(2)(e) of the Act, which was the provision she was considering in the case of Re Underwood (supra). Therefore, this of little assistance when considering the different legislative language of subsection 739A(7) of the Act.
Mr Slattery undertook an appraisal of some of the relevant cases in relation to the issues under review. Noting a characteristic of some of the earlier cases decided by the Tribunal was that relating to the information about the newly arrived resident's waiting period being provided to prospective migrants to Australia. The difficulty has at times been regarded by the Tribunal as significant and contributed to some of its findings that subsection 739A(7) of the Act was satisfied as, for example, in Re Chelechkov (supra) and Re Secara (supra). In Re Abu-Zama and Secretary, Department of Social Security (1998) (AAT No. 12961, 5 June 1998), Mr Abu-Zama had no knowledge of any waiting period prior to his arrival in Australia. Accordingly, referring to Re Secara (supra) for support of the proposition that lack of knowledge of the law or of the change of the law could constitute a substantial change in circumstances, the Tribunal in that case decided in the Applicant's favour. Further, in Re Tadros and Secretary, Department of Social Security (1998) (AAT 12649, 26 February 1998), that Tribunal found that a combination of factors were relevant.
Conversely, Mr Slattery referred the Tribunal to a number of cases in which the persons concerned did not satisfy subsection 739A(7) of the Act noting in this regard, the decision of Re Singh and Kaur and Secretary, Department of Social Security (1998) AAT 12667, 2 March 1998). In that case the Tribunal found that Mr Singh and his wife, Mrs Kaur, despite their poor financial situation and inadequate advice about the waiting period, had unrealistic expectations about employment prospects in Australia and were found not to satisfy subsection 739A(7) of the Act. Further, in Re Shaik and Secretary, Department of Social Security (1998) (AAT 12785, 8 April 1998) that Tribunal found that the test in subsection 739A(7) of the Act was not satisfied although the Tribunal accepted that the applicants had received inaccurate and misleading information concerning the waiting period in Australia and also inadequate information about income support. In Re Fomin (supra) the then President of the Tribunal dealt with the unreal expectations of the applicants and their inadequacy of funds. Other cases referred to by Mr Slattery included Re Secretary, Department of Social Security and Lugovsky (1998) (AAT 13058, 3 July 1998); and Re Secretary, Department of Social Security and Seshachalam (1999) (AAT 99/0073, 5 February 1999).
Mr Slattery submitted that it is an "unremarkable fact" that new migrants to Australia may experience expense and delay when seeking to migrate to Australia. This issue was discussed by Mathews J in Re Chelechkov (supra). Where it was noted:
"… the further back in time one goes between the arrival in Australia and the event which is relied upon as constituting the change, the less likely it will be that the person was irrevocably committed to the migration process. If he/she had not reached that stage then it could not be said that the person's poverty in Australia was attributable to the change, but rather to the decision to migrate, notwithstanding the change."
Referring to Ms Sripathy's submission that the delays and the expense relating to the migration process by Mr and Mrs Sarkar going back approximately 5 years or more, could be regarded as a substantial change, was not in line with the reasoning of the then President Mathews in Re Chelechkov (supra), Mr Slattery submitted. The changes Ms Sripathy referred to are too far back in time to be relevant for the purposes of subsection 739A(7) of the Act, Mr Slattery contended. Further, there was no evidence that these delays were, as President Mathews specified, "directly responsible for the migrant's state of poverty in Australia". Mr Slattery also submitted that one could not consider a change of law or a change of policy per se as a substantial change in circumstance. In any event, the events referred to by Ms Sripathy arising out of the postponement of Mr and Mrs Sarkar's application for migration occurred so far back that they could not be considered in the context of the legislation as being a substantial change. Too much time had elapsed since those changed events and Mr Slattery submitted that the Respondent did not accept the contention that the change in circumstances in Mr and Mrs Sarkar's case, namely the delays with the migration process, could fall within the discretion contained in subsection 739A(7) of the Act.
Turning to the issue of Mr Sarkar's employment situation in Australia, Mr Slattery noted that Mr Sarkar was employed on a casual basis at Sydney University lasting from 15 April 1999 to 6 July 1999.
Noting Ms Sripathy's submission that the Mr Sarkar's loss of employment constituted a substantial change beyond his control, Mr Slattery referred the Tribunal to Dr Darvey's letter of 16 February 2000. At point 2, Dr Darvey wrote that Mr Sarkar visited the Institute shortly after his arrival in Australia and that while Dr Darvey had not provided any guarantees, he advised him that there were some possible studentships at the Institute and that if he was interested, he could be provided with a limited amount of casual labour while Dr Darvey and his colleagues assessed his potential for scholarships (Exhibit A9). Mr Slattery submitted that there was no guarantee to Mr Sarkar of indefinite employment contained within those words. While he noted the inability of the Institute to continue Mr Sarkar's employment due to a lack of funding and that may have been a matter out of his control, it did not constitute a substantial change in circumstances for the purposes of subsection 739A(7) of the Act.
Mr Slattery referred the Tribunal to the SSAT's reasoning on this issue, noting that the SSAT determined that while Mr Sarkar's cessation of casual employment was a change in circumstances, it was not a substantial change. Further, Mr Slattery noted that the SSAT agreed with Centrelink that Mr and Mrs Sarkar were in financial hardship because they came to Australia with insufficient funds, rather than because of any substantial change in circumstances. Mr and Mrs Sarkar's circumstances were very similar to those outlined in Re Fomin (supra), Mr Slattery contended. Mr Slattery referred the Tribunal to the normal processes which occur when newly-arrived migrants commence their lives in a new country. There is the process of looking for work, often finding short-term casual employment, setting up home and the like. Mr Slattery submitted that the SSAT identified a useful general principle that ought to be applied when exercising the discretion contained within subsection 739A(7) of the Act and that is that newly arrived migrants in Australia will generally be subject to the 104 week waiting period. People who satisfy the test in subsection 739A(7) of the Act are an exception to a general rule.
The definition of "substantial" was discussed in Re Chelekov (supra) and was taken to mean something that resulted in a substantial loss or damage or from the Macquarie Dictionary, referring to an ample or considerable amount or quantity or size.
Mr Slattery submitted that applying such definitions, the cessation of casual employment is common place, it is the nature of that type of employment and could not be considered in any sense a substantial change. While noting that casual employment is an increasing phenomena in the current labour situation, Mr Slattery submitted that because of the nature of casual employment, the expectations referred to by Ms Sripahty were not in fact realistic. There could be no substantial change in the expectations for Mr Sarkar because the nature of casual employment is that it is temporary, and as such, likely to end after a short time and often suddenly. Therefore, it is not reasonable to argue that there could be any substantial change in expectations or circumstances when the circumstances or expectations were never very real or permanent in the first place. To satisfy the test contained in subsection 739A(7) of the Act, Mr Slattery submitted that Mr Sarkar would have to experienced more uncommon or unusual circumstances than those which occurred during his first six months within Australia. Merely being disappointed at a frustration of expectations does not satisfy the test in subsection 739A(7) of the Act, Mr Slattery submitted.
In Mr Sarkar's case, there is no evidence that he was given misleading, inaccurate or inadequate information from the Australian Embassy in Bangkok and it is submitted that if Mr Sarkar's expectations about the ease of obtaining and retaining employment in Australia were disappointed since his arrival in this country, this was more to do with "wishful thinking" or "over confidence" on his part and it does not follow, using the reasoning in Re Fomin (supra) that this constitutes a change in circumstances for the purposes of subsection 739A(7) of the Act.
In all the circumstances, Mr Slattery submitted that Mr and Mrs Sarkar have not suffered a substantial change in their circumstances beyond their control and therefore do not satisfy subsection 739A(7) of the Act. As such, they are subject to the newly arrived resident's waiting period. Accordingly, Mr Slattery submitted that the decision of the SSAT should be affirmed.
FindingsThe Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the law and case law. The Tribunal considered that Mr Sarkar provided truthful and frank evidence and he is a witness of credit.
The Tribunal accepts and so finds that Mr and Mrs Sarkar are qualified for Special Benefit but the issue before the Tribunal is that of payability despite there being in operation a two year newly arrived resident's waiting period. There is no doubt that the two year waiting period applies to Mr and Mrs Sarkar but whether or not it can be waived under the discretion contained within section 739A of the Act because of a substantial change in circumstances beyond Mr and Mrs Sarkar's control, must be determined.
The Tribunal considers that there must be a consideration of the definitional issues in this matter. Referring to the case law, the Tribunal considers that a substantial change encompasses a change of circumstances or of expectations which is greater than would normally be the case, a large or identifably significant change to either a person's circumstances or their expectations. Further, the Tribunal considers that "beyond a person's control", encompasses situations where an event or expectation is changed because of something external to the person, an influence or event or illness which is unexpected and not within the person's ability to foreshadow or prevent.
Ms Sripathy has contended that a substantial change occurred in Mr and Mrs Sarkar's circumstances before they arrived in Australia. While the Tribunal accepts that there may be a possibility where substantial changes occur before a person migrates to Australia, it is to the particular circumstances of the individual case that a decision maker must refer before accepting that a substantial change occurred before the migrant arrived in Australia. In Mr and Mrs Sarkar's case, the argument is that the substantial change in circumstances occurred in January 1996 when Mr Sarkar was informed by letter that the family's application for migration was in effect, postponed, because of there being limited places available for migration. The Tribunal notes, however, that subsequent to this event, in January 1998, a further frustration of Mr and Mrs Sarkar's plans to migrate to Australia occurred when they were notified that because of the birth of their third child, their documentation was out of date and this needed to be rectified in addition to having new visas and medical examinations needed to be organised. The Tribunal accepts that in 1996, the change of policy caused Mr and Mrs Sarkar to be frustrated and disappointed that they were not able to migrate to Australia at that point. But there were other circumstances which occurred in 1998 again which frustrated or disappointed Mr and Mrs Sarkar. When eventually Mr and Mrs Sarkar were advised of the successful application for migration, this was in late 1998 and they had up until 20 March 1999 to decide to come to Australia. The Tribunal does not accept that the number of disappointments which occurred frustrating Mr and Mrs Sarkar's wish to migrate to Australia can be considered a substantial change in their circumstances. Mr and Mrs Sarkar had every opportunity had they wished, not to migrate to Australia prior to the actual approval in August 1998. As the Tribunal noted in Re Chelechkov (supra), the further back in time one goes between the arrival in Australia and the event which is relied upon as constituting the change, the less likely it would be that the person was irrevocably committed to the migration process. Accordingly, the Tribunal does not consider that events which occurred prior to Mr and Mrs Sarkar's arrival in Australia could be considered to be a substantial change in circumstances beyond their control. In so finding, the Tribunal also notes Mr Sarkar's evidence that once approval had been provided for migration to Australia, he and his wife had a decision to make in which they balanced various options. This suggests to the Tribunal a considered and logical, objective approach to the issue of whether to migrate or not. The eventual decision was taken to migrate to Australia, although noting that it was risky, Mr Sarkar considered that the possibility of advancement of his family and his own studies and career was worth the risk. There was never any suggestion that he and his wife did not realise that there would be a two year waiting period, nor any suggestion that he had been poorly or inadequately advised.
The Tribunal now turns to consider the circumstances surrounding Mr and Mrs Sarkar's arrival in Australia. Prior to deciding to migrate to Australia, Mr Sarkar had sensibly made enquiries of Bangladeshie colleagues in Australia. This has led him to Dr Darvey at the Plant and Breeding Institute of the University of Sydney. When Mr Sarkar had made his enquiries, he noted that other colleagues from Bangladesh and come to Australia and had obtained employment and were studying to complete their PhD. It was following such discussions and contact with Dr Darvey that Mr Sarkar and his wife decided to take the risk and migrate. The Tribunal has examined whether or not there is any element of wishful thinking in Mr Sarkar's view and expectations about obtaining employment in Australia. If there is an air of unreality or non-objective evidence indicating that there was no real possibility of employment or continued employment, then the Tribunal would have to find that there was not a substantial change in circumstances beyond Mr and Mrs Sarkar's control. Considering Dr Darvey's letter, the Tribunal understands that the process of selecting students for research positions and scholarships involved an assessment period where prospective scholars would undertake either voluntary work, as Mr Sarkar did, or casual work, also undertaken by Mr Sarkar, in an effort for the authorities at the Institute to assess the suitability of the candidate. This process also provided Mr Sarkar with the opportunity of assessing whether or not he would fit in and whether his aims and aspirations could be met within the context of the Institute. Mr Sarkar progressed from voluntary work to casual work and it seems to the Tribunal that his plans as thought of prior to his arrival in Australia were on the way to reaching fruition. Dr Darvey commented that he had offered Mr Sarkar a scholarship in relation to research on hybrid wheat and triticale. Both Dr Darvey and Mr Sarkar had the expectation that this project would progress, particularly as the preliminary proposal for the research project had been agreed to by the Grains Research Development Corporation. This was no wishful thinking, either on the part of Mr Sarkar nor Dr Darvey.
The Tribunal is not troubled by Mr Sarkar being employed on a casual basis because it sees this as the normal arrangement in the context of the academic setting in which Mr Sarkar was operating. The process requiring assessment through to offer of scholarship was in fact what Mr Sarkar had commenced. Mr Sarkar had been employed in this manner with a view to the long-term prospect of a scholarship and had ordered his life accordingly. His funds, as in any migration process, had been expended in the setting up of his home. This was not frivolous expenditure but necessary in the context of a newly arrived family. Further, it was Mr Sarkar's very realistic expectation that he would continue to be employed and that he would gain a scholarship. Thus, the Tribunal finds that Mr Sarkar's expectations of continued employment at the Plant Institute at Cobbity were realistic, and not only held by himself, but by Dr Darvey, the Senior Lecturer and researcher who was responsible for the scholarship being offered to Mr Sarkar. A substantial change of circumstances occurred when the approving authority rejected the proposal. This was totally unexpected as the preliminary proposal had been accepted and Dr Darvey was just as shocked as Mr Sarkar.
The Tribunal finds, therefore, that Mr Sarkar had real expectations of continued employment through to a scholarship at the Plant Breeding Institute of the University of Sydney and this expectation is corroborated by the statement from Dr Darvey, who was intricately involved in Mr Sarkar's employment and offer of a scholarship. The change of expectation or circumstances occurred when the research scholarship which had been offered to Mr Sarkar could no longer proceed because the funding was rejected by an external organisation. The Tribunal finds that this was totally unexpected and could not have been foreseen. In such circumstances, the Tribunal finds that Mr Sarkar satisfied subsections 739A(7) of the Act. In view of Mrs Sarkar's dependent status, the Tribunal also finds that she satisfies subsection 739A(7) of the Act. Having so found, the Tribunal determines that Mr and Mrs Sarkar are not only qualified for Special Benefit, but are payable.
Accordingly, in all the circumstances and for the reasons set out above under the provisions of section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and substitutes its decision that:
1. Mr and Mrs Sarkar satisfy subsection 739A(7) of the Act and therefore the two year newly arrived resident's waiting period does not apply. Accordingly, Mr and Mrs Sarkar are qualified for Special Benefit to be paid from the date of the claims, the subject of this review.
2. The matter is remitted to the Department to determine the rate of Special Benefit and the period of payment.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S Bullock, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 4 May 2000
Date of Decision 2 August 2000
Representative for the Applicant Ms M Sripathy, Solicitor,
Welfare Rights Centre Sydney
Representative for the Respondent Mr B Slattery, Department advocate
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