Stefanovski and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1662

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1662

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007002220

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUZANA STEFANOVSKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date13 August 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............................................

Deputy President

CATCHWORDS

SOCIAL SECURITY – maternity payment in respect of a child – family tax benefit – not eligible for FTB as not Australian resident and absent from Australia for more than 13 weeks – claim for maternity leave made out of time – decision under review affirmed

Administrative Appeals Tribunal Act 1975 (Cth). – s34J

A New Tax System (Family Assistance) Act 1999 (Cth.) – ss 7, 21, 21(1)(b), 21(1A), 36(2)

A New Tax System (Family Assistance)(Administration) Act 1999 (Cth.) – ss36, 38, 39(2),(3)

REASONS FOR DECISION

13 August 2007	Deputy President P E Hack SC
Introduction

1.The applicant, Ms Suzana Stefanovski, seeks a review of a decision made by Centrelink to reject her claim for maternity payment. That decision was affirmed on internal review on 28 February 2007 and by the Social Security Appeals Tribunal on 8 May 2007.

2.There is no dispute about the facts and the parties have agreed in writing to the matter being determined without a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth.)

Background

3.Ms Stefanovski is an Australian citizen who was, until April 2005, ordinarily resident in Australia. In that month she left Australia to travel overseas with her partner, Martin. Martin was a South African citizen. Ms Stefanovski intended to be away from Australia for a year.

4.In October 2005, when she and Martin were in South Africa, Ms Stefanovski discovered that she was pregnant. She made contact with the Australian High Commission in Pretoria to see if she could obtain a partner visa for Martin. She was told that such applications usually took at least six months. In view of this, the application for a visa was lodged but Ms Stefanovski knew that it was unlikely to be granted before the birth. While she wanted to return to Australia for the birth she did not want to be without the support of Martin at this time. Thus, return to Australia was not practical. She and Martin travelled to Swaziland.

5.The child, Mahlix, was born in April 2006 in Swaziland. His birth was registered in June 2006 and on 29 June 2006 his Australian citizenship was registered by the High Commission in Pretoria. Martin was finally granted a temporary partner visa in late November 2006 and the family arrived in Australia a few days later on 12 December 2006.

6.Ms Stefanovski lodged her application for maternity payment on 18 December 2006. It was rejected on 8 January 2007 and that decision was affirmed on internal review on 28 February 2007 and by the Social Security Appeals Tribunal on 8 May 2007. Hence the present application.

The Legislation

7.An individual is qualified for maternity payment in respect of a child in the four situations described in s 36 of the A New Tax System (Family Assistance) Act 1999 (Cth.) (“the Family Assistance Act”). It is the situation in s 36(2) of that Act which is relevant here. At the relevant time[1] it provided:

[1]       The Act has since been amended in respects not relevant here (other than to note that maternity payment is now called “baby bonus”) by the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (No. 82, 2007).

“(2)First, an individual is eligible for maternity payment in respect of a child if:

(a)     the individual is a parent of the child; and
(b)     the individual either:

(i)is eligible for family tax benefit in respect of the child at any time within the period of 13 weeks starting on the day of the child’s birth; or

(ii)would be so eligible except that the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is nil.”

8.Eligibility for family tax benefit is governed by s 21 of the Family Assistance Act. It is in these terms:

“(1)An individual is eligible for family tax benefit if:

(a)the individual has at least 1 FTB child (see section 22 and later provisions); and

(b)the individual:

(i)    is an Australian resident; or

(ia) is a special category visa holder residing in Australia; or

(ii)   satisfies subsection (1A); and

(c)the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.

(1A)An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991, and either of the following applies:

(a)the individual is in Australia; or

(b)the individual:

(i)    is temporarily absent from Australia for a period not exceeding 13 weeks; and

(ii)   the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.

(2)However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.”

9.Section 7 of the Family Assistance Act defines an Australian resident as a person who resides in Australia and who is an Australian citizen or the holder of a permanent visa.

10.The entitlement to be paid maternity payment is governed by the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth.) (“the Family Assistance Administration Act”). By virtue of s 36 of the Family Assistance Administration Act the only way to be entitled to be paid maternity payment is to make a claim in accordance with Division 3 of Part 3 of that Act. Section 38 of the Family Assistance Administration Act deals with the manner and form of a claim; matters not relevant here. What is relevant is the timing of the claim. That is dealt with in s 39 of the Family Assistance Administration Act which, so far as is presently relevant, provides:

“(2)Subject to subsection (3), a claim for payment of baby bonus in normal circumstances is not effective if it is made later than 26 weeks after:

(a)if the circumstances covered by the claim involve eligibility under any of subsections 36(2) to (4) of the Family Assistance Act—the birth of the child mentioned in that subsection; or

(b)if the circumstances covered by the claim involve eligibility under subsection 36(5) of the Family Assistance Act and the child mentioned in that subsection arrives in Australia from overseas as part of the process for the adoption of the child—the time the child arrives in Australia; or

(c)if the circumstances covered by the claim involve eligibility under subsection 36(5) of the Family Assistance Act and the child mentioned in that subsection does not arrive in Australia from overseas as part of the process for the adoption of the child—the time the child is entrusted to the care of the claimant.

(3)If the Secretary is satisfied that the claimant was unable to make a claim for payment of baby bonus in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 26 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.”

Application of the Legislation

11.Ms Stefanovski is the parent of Mahlix and thus s 36(2)(a) of the Family Assistance Act is satisfied. The next question is whether she is eligible for family tax benefit. It is sufficient for present purposes to note that in the period up until her return to Australia in December 2006 Ms Stefanovski was not eligible for family tax benefit. That is so because she was not, during that time, an Australian resident i.e. she was not residing in Australia. Thus she could not satisfy either limb of s 21(1)(b) of the Family Assistance Act. And she could not satisfy s 21(1A) of the Family Assistance Act because her absence from Australia exceeded 13 weeks.

12.Once she returned to Australia Ms Stefanovski became eligible for family assistance because she became a resident again. However, despite her promptness in lodging a claim for maternity payment her claim is not effective because it was not made within the time specified in s 39(2) of the Family Assistance Administration Act. Because Ms Stefanovski’s claim involves eligibility under s 36(2) of the Family Assistance Act the claim was required to have been made not later than 26 weeks after the birth of Mahlix. It was not. There is an exception to the rule in s 39(3) of the Family Assistance Administration Act however there is no suggestion in the present case that Ms Stefanovski was unable to make the claim within 26 weeks of birth because of “severe illness associated with the birth of the child”. There was no severe illness. She was unable to make the claim within the time specified because she was not eligible to make the claim until her return to Australia.

13.Ms Stefanovski says that this result is anomalous when compared with the position of someone adopting a child from overseas. In such a case she points out, correctly as it seems to me, that the time for lodgement runs from the time when the adopted child arrives in Australia.

14.I am not convinced that there is a true comparison to be made between the two situations such that there is an anomalous result but even if there were the legislation is plain. I am required to give effect to it and have no discretion. I would affirm the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Eleanor O’Gorman, Associate

Date of hearing                   Hearing on the papers

Date of decision                  13 August 2007