STROBL And SECRETARY TO THEDEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES

[2002] AATA 1312

DECISION AND REASONS FOR DECISION [2002] AATA 1312

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/931
GENERAL ADMINISTRATIVE DIVISION
  Re:         MARKUS STROBL
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             18 December 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

1. SOCIAL SECURITY - disability support pension - additional payment for son aged 25 years - claim for family tax benefit - applicant residing overseas
   A New Tax System (Family Assistance) Act 1999 s21
   Social Security (International Agreements) Act 1999 s13, 14

REASONS FOR DECISION

18 December 2002  G.D. Friedman, Member

1. This is an application by Markus Strobl (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 4 July 2002.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 23 January 2002, that the applicant was not entitled to an additional payment of disability support pension (DSP) for his 24-year-old son who lives with him; and that the applicant was not entitled to family tax benefit (FTB) because he is not residing in Australia.

2. With the consent of the parties, the Tribunal decided to make a decision on the review application without holding a hearing. The material before the Tribunal comprised the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (T1-T15) and a submission dated 13 December 2002 on behalf of the Secretary to the Department of Family and Community Services (the respondent).

BACKGROUND

1. The applicant lived in Australia from 1972 to 1977, after which he moved to Tellerweg, Austria where he has remained.  On 25 January 2000 he was granted DSP on the basis of an agreement between the Republic of Austria and Australia and the period of residence in Australia.  On 14 September 2001 he claimed additional DSP because his son, now aged 25 years, had moved from Australia to live with him.  He also claimed FTB for his son.  On 16 November 2001 Centrelink refused the claim for additional DSP because his son was over the age of 16 years.  Centrelink also refused the application for FTB because the applicant was not a resident of Australia.  On 23 January 2002 an authorised review officer affirmed the decisions.  On 20 February 2002 the applicant applied to the SSAT for review of the authorised review officer's decisions.  On 29 August 2002 the applicant lodged an application with the Tribunal for review of the decision by the SSAT.

EVIDENCE

1. In letters dated 6 September 2001, 4 December 2001, 17 April 2002 and 19 August 2002 the applicant stated that his son was born in Australia and is an Australian citizen, and from 5 September 2001 has been studying information technology full-time while living with the applicant and the applicant's wife.  He said that the course lasts for two years and during this time his son has no income, so is dependent on his parents for support.

2. The applicant stated that any distinction between Australian children living in Australia and those living overseas is discriminatory.  He also questioned why FTB is only available to Australian residents and not former residents or recipients of pensions who are granted an Australian DSP.  The applicant expressed the view that all people are equal under international human rights conventions.  He was unhappy that Centrelink required him to provide details of any change in circumstances, yet refused to pay additional DSP or FTB to him.

CONSIDERATION OF THE ISSUES

1. The relevant sections of the Social Security (International Agreements) Act 1999 (the Act) are:

   13(1)  A person's international agreement portability rate is worked out as follows:

   (a)the period of the person's Australian working life residence in Australia (the residence period) is worked out according to Division 2;

   (b)the person's residence factor is worked out according to Division 3;

   (c)the person's notional agreement pension rate is worked out by calculating the rate that would be the person's social security payment rate if this section did not apply to the person but taking into account section 14;

   (d)if the person's notional agreement pension rate is nil, the international agreement portability rate is also nil;

   (e)if the person's notional agreement pension rate is not nil, add the additional child amount or amounts (that are applicable in accordance with section 14A) to the person's notional agreement pension rate. This new amount is the person's total notional rate;

   (f)multiply the person's total notional rate by the person's residence factor: the result is the person's international agreement portability rate.

   …

   14A(1)  For the purpose of the step in the calculation of a person's international agreement portability rate that is described in paragraph 13(e), the additional child amounts that may be applicable are set out in the following table. They are annual amounts. The amount in item 3 is only applicable if an amount in item 1 or 2 is to be paid to a person without a partner.

Additional child amounts   
Item    Family situation       Additional child amount     

1. For each dependent child under 13 years of age     $2,891.20       

2. For each dependent child who has reached 13, but is under 15, years of age        $3,759.60       

3. For a person without a partner         $1,063.40       

1. The relevant section of the A New Tax System (Family Assistance) Act 1999 (the New Tax Act) is:

   21(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.

   …

2. The respondent stated in its submission that as the applicant's son is aged 25 years the applicant is not eligible to receive additional DSP.  The respondent also submitted that FTB is not applicable because the applicant is not a resident of Australia, and his son is not studying an approved course of education or study. 

3. In reaching its decision, the Tribunal takes into account the written material, including submissions made by the applicant and the respondent. 

4. On the material presented, the Tribunal has no reason to doubt that the applicant and his wife face financial difficulty in supporting their son during his full-time course of study. However, the Tribunal agrees with the respondent's submission, that as the son is aged 25 years the applicant does not satisfy the provisions of s14A of the Act, so the applicant is not eligible to receive additional DSP.

5. The Tribunal also agrees with the respondent that as the applicant has not lived in Australia since 1977 he is not an Australian resident. Therefore, he does not satisfy the provisions of s21 of the New Tax Act and is not eligible to receive FTB.

DECISION

1. The Tribunal affirms the decision under review.

   I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D.Friedman, Member

   (sgd)      Olympia Sarrinikolaou
                 Clerk

   Date of hearing:  Nil: decision on papers

   Date of decision:  18 December 2002