Staszek and Department of Family and Community Services

[2001] AATA 218

DECISION AND REASONS FOR DECISION [2001] AATA 218

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2000/114

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

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date9 March 2001

PlaceHobart

Decision      The decision under review is affirmed.             
  ..............................................
  Part-Time Member
CATCHWORDS
 Social Security – overseas social security age pension – proper claim – applicant resident in Poland – no international agreement between Australia and Poland – appeal dismissed.
Social Security Act 1991 – s.51

REASONS FOR DECISION

9 March 2001          Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by a Centrelink officer on 17 November 1999 rejecting her claim for an age pension.   The decision was subsequently affirmed by an authorised review officer on 24 February 2000 and by the Social Security Appeals Tribunal (SSAT) on 22 June 2000.

2. As the applicant currently resides in Poland it was agreed during a tele-conference link-up between the parties that the Tribunal would determine the application on the basis of the written material before it. This material includes the 'T' documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.

3. In the applicant's letter of appeal to this Tribunal, the applicant pointed out that her husband had worked and lived in Australia for a period of 24 years and prior to his death was in receipt of an Australian pension.   The applicant conceded that she would not be entitled to the same pension benefit as previously received by her deceased husband, but asked if there was any  legislation relevant to her circumstances.    She pointed out that she is in a critical financial situation and had been informed by the social institutions in Poland that she needed to "appeal to the country where my husband worked," for pension entitlements.

4. The applicant's claim for an age pension was rejected on the basis that in order to make a proper claim for age pension, the applicant must be resident in Australia at the relevant time.

5. The decision whether to grant the applicant an age pension must be made in accordance with the relevant legislation as set out in the Social Security Act 1991 ("the Act").

6. Section 51 of that Act states that:-

   "A claim by a person is not a proper claim unless the person is:

   (a)an Australian resident; and

   (b)in Australia;

   on the day on which the claim is lodged."

7. The evidence before the Tribunal is that at the time the applicant made her claim for an age pension which was received by Centrelink on 15 April 1989, she was resident in Poland.

8. Unfortunately there is no reciprocal international agreement between Australia and Poland which could assist the applicant while she continues to reside in Poland.

9. Whilst the Tribunal appreciates the apparent very difficult financial circumstances of the applicant, it has no discretion to decide her application other than in accordance with the provisions of the relevant legislation.

10. The Tribunal having found that the applicant failed to meet the legislative requirements for the lodgement of a proper claim for pension, it must accordingly affirm the decision under review.

    I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  Overseas application - matter decided on the papers.
    Date of Decision  9 March 2001