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

[2016] AATA 733

Sharkey and Secretary, Department of Social Services (Social services second review) [2016] AATA 733 (23 September 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5290
Re	Ronald Sharkey
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	23 September 2016
Place	Sydney

The decision under review is affirmed

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY - eligibility - age pension - whether applicant was an Australian resident and in Australia at the time claim lodged - determined applicant overseas when claim was lodged online - decision under review affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

Senior Member A Poljak

23 September 2016

1. On 17 December 2014 Mr Sharkey, who at the time was in Fiji, lodged a claim for the Australian Age Pension (“the Claim”). On 4 February 2015 the claim was refused by the Department of Social Services (“the Department’) because he was outside of Australia when he lodged the claim.

2. An Authorised Review Officer reviewed and affirmed the decision of the Department. Mr Sharkey then applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) for a review of the decision.  On 28 August 2015 the SSCSD affirmed the earlier decision. This is the decision under review.

3. It is not in dispute that Mr Sharkey :

   (a)Satisfied the qualification criteria for the age pension pursuant to s 43 of the Social Security Act 1991 (Cth) (“the Act”) at the date of claim;

   (b)Was an Australian resident at the date of claim and satisfied s 29(1)(a) of the Social Security (Administration) Act (1999) (“the Administration Act”); and

   (c)Was not in Australia on 17 December 2014.

4. The parties consent to the matter being heard on the papers and I am satisfied that the issues for determination on review can be determined in the absence of the parties.

   RELEVANT LEGISLATIVE PROVISIONS

5. Section 29(1) of the Administration Act provides as follows:

   “(1) Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:

   (a) is an Australian resident; and

   (b) is in Australia.

   (2) Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made”.

6. Section 30, 30A, 31, 31A, 31B and 32 have no relevance to this application.

7. Under the Social Security (International Agreements) Act 1999 Australia has entered into agreements with a number of countries. These agreements override certain provisions of the Administration Act including the requirements of s 29.  It is sufficient for the making of a claim if the person is a resident of a country with which Australia has such an agreement or is then residing in a third country in which Australia has an agreement. Australia has no such agreement with Fiji.

   CONSIDERATION

8. Mr Sharkey states, in his written submissions, that on 17 December 2014, he began an online claim for the age pension but did not submit it because he was outside Australia at that time. He states that on his return to Australia he attended Centerlink in Nelson Bay on 22 December 2014 and requested for his unfinished claim from 17 December 2014 to be discarded. He says that he was assured that his claim would be filed and dated 22 December 2014. 

9. There is no evidence before me that Mr Sharkey lodged a claim for the age pension on 22 December 2014.  

10. The Online Claim History for Mr Sharkey shows that on 17 December 2014 he created and then lodged a claim for the age pension. Although Mr Sharkey contends that he did not intend to submit his claim on 17 December 2014, the objective evidence before me plainly shows that his application was lodged on that date.

11. The Tribunal has no discretion simply to determine what it believes would be fair in all the circumstances. It is required by law to interpret and apply the relevant legislation as enacted by the Australian Parliament.

12. As Mr Sharkey was not in Australia at the time he made his claim for the age pension the claim is taken not to have been made pursuant to s 29 of the Administration Act.

    CONCLUSION

13. The decision under review is affirmed.

I certify that the preceding (13) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated 23 September 2016

Date(s) of hearing	26 August 2016 (heard on the papers)
Applicant	In person
Solicitors for the Respondent	Department of Human Services