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

[2006] AATA 487

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 487

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/1080

GENERAL ADMINISTRATIVE  DIVISION

Re:SHU SUN

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:18 April 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton
  Member

SOCIAL SECURITY   family tax benefit – maternity payment – residency requirements for payment - ineligible due to child living overseas and not in daily care of parent in Australia during relevant period  –  decision affirmed

A New Tax System (Family Assistance) Act 1999 ss 21, 22, 36

Social Security Act 1991 s 7

Migration Act 1958

REASONS FOR DECISION

6 June 2006  Regina Perton, Member

1.      Shu Sun is an Australian permanent resident.  His son, Shenglong Sun, was born on 15 December 2004 in the People’s Republic of China (the PRC).  Mr Sun’s wife, Jingjie Chen is the holder of a subclass 309 temporary residence spouse visa.  Ms Chen returned to the PRC, where her parents live, for the birth of their child.  Mr Sun has applied for permanent residence for his wife and child but the processing of the application is taking some time.  At this stage both remain in the PRC.  Mr Sun has visited his wife and son a number of times since his son’s birth.

2.      On 23 March 2005, Mr Sun lodged an application for Family Tax Benefit (FTB) and maternity payment.  On 24 March 2005, Centrelink refused the claim with the following explanation:

We cannot pay you Maternity Payment for Shenlong because he was not in your care within 13 weeks of his birth

We cannot pay you Family Tax Benefit for Shenlong because he is not in your care.

We cannot pay you Maternity Immunisation Allowance because you do not have any qualifying dependent children.

. . .

3.      On 23 May 2005, an authorised review officer (ARO) of Centrelink affirmed the decision to refuse the claim.  Mr Sun lodged an application for review with the Social Security Appeals Tribunal (SSAT) on 11 August 2005.  He stated that he believed the decision was incorrect because he had been back to the PRC three times since his son was born to care for his son and his wife.  He pointed out that the only reason that they were still in the PRC was because of the delay in processing the visa applications.  On 27 October 2005, the SSAT affirmed the decision.  On 30 November 2005, Mr Sun lodged an application for review with the Tribunal.

4.      The issue before the Tribunal is whether Mr Sun can be granted FTB and maternity allowance in relation to his son. 

5.      The Tribunal provided oral reasons for decision at the hearing but Mr Sun subsequently requested written reasons for decision. 

EVIDENCE

6.      Mr Sun’s oral evidence was mostly in English with an interpreter in the Mandarin language assisting occasionally.  Mr Sun stated that he has visited his wife and child four times since the birth.  He was in the PRC for several weeks immediately after his child’s birth, from 16 December 2004 to 27 January 2005, from 25 March 2005 to 2 April 2005 and from 23 June 2005 to 10 July 2005.  Mr Sun supports his wife and child financially.  His child was in his personal care for several weeks during the 13 weeks following the birth.  He indicated that relevant visa applications had been made but that the processing of the applications was taking time. 

7.      Mr Sun stated that he believes he qualifies for the benefits as set out in the Departmental policy guidelines as contained in the Family Assistance Guide.  

CONSIDERATION OF THE ISSUES

8. Section 21 of the A New Tax System (Family Assistance) Act 1999 (the Act) states that a person is eligible to be paid FTB if he is an Australian resident and has at least 1 FTB child.  Mr Sun is an Australian permanent resident. 

9. Section 22 of the Act sets out the criteria for a child to be an FTB child. The only part of s 22 applicable to Mr Sun’s circumstances is s 22(2), as the later subsections refer to Family Court orders, situations where the child is not being cared for by either parent or children older than 18.

. . .

22(2)  The individual is an FTB child of the adult if:

(a)      the individual is aged under 18; and

(b)the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; and

(c)       the individual is in the adult’s care; and

(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

. . .

10. To be paid FTB Mr Sun is required to meet all four criteria in s 22(2) of the Act. The Tribunal is satisfied that Mr Sun meets the first three criteria. However, it is paragraph 22(2)(d) of the Act that poses the problem for Mr Sun.

11.     The terms Australian resident and special category visa holder are defined in s 7 of the Social Security Act 1991 and the Migration Act 1958.  Shenglong Sun is not an Australian resident nor is he a special category visa holder.  He is presently a PRC citizen living in that country.  Shenglong has never lived in Australia. 

12.     Mr Sun submitted that the Part 2.1.1.10 of the Family Assistance Guide indicates that FTB can be paid when a child is living away from home.  He cited the following passage (T11, p43):

FTB child living away from home

FTB can be paid for a child who is living away from home as long as the adult continues to have responsibility for the care of the child…

13.     Mr Sun said that he is responsible for the care of Shenglong and meets all his financial needs.  He travels to the PRC as often as he can.  Shenglong is not in Australia with him because of delays in granting of his visa.  However, as the Tribunal explained at the hearing, the policy guidelines cannot be read in isolation and are subservient to the legislative provisions.  

14. In any event, Shenglong is not living with Mr Sun and does not meet the other alternatives in s 22(2)(d) of the Act. Therefore, Shenglong is not Mr Sun’s FTB child.  Accordingly, Mr Sun is not entitled to FTB.

15. To be eligible for maternity allowance Mr Sun needs to meet the criteria in s 36 of the Act. The criterion for a parent are set out in s 36(2):

. . .

Parent of child

(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.

. . .

16. Mr Sun meets the criteria in s 36(2)(a) of the Act. However, because Mr Sun was not eligible for FTB during the first 13 weeks following Shenglong’s birth, he fails to satisfy the requirement in s 36(2)(b) of the Act. Therefore, he does not qualify for maternity payment.

17.     If Shenglong had been born in Australia, or arrived here before he was 3 months old, Mr Sun would have been able to claim FTB and would most likely have qualified for maternity payment.  His wife’s return to the PRC for the birth of Shenglong, no doubt for sound and genuine reasons, has unfortunately resulted in the family missing out on maternity payment.   The Tribunal does not have discretion to overlook or waive the relevant legislative provisions, which unfortunately do not cater for someone in Mr Sun’s circumstances. 

DECISION

18.     The Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

sgd:         Catherine Lake

Clerk

Date of hearing:  18 April 2006
Date of decision:  18 April 2006
Date of written reasons:               6 June 2006
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr D Perdon, Centrelink