TUAPOLA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 674

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 674

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0803

GENERAL ADMINISTRATIVE DIVISION		)
Re		VICKIE Tuapola

Applicant

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

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date6 September 2010

PlaceSydney

Decision The decision under review is affirmed.

..................[Sgd]......................

Ms N Isenberg

Senior Member

CATCHWORDS

SOCIAL SECURITY- baby bonus- overseas adoption- under two years of age- arrival in Australia part of process of adoption- application made within 26 weeks- decision affirmed.

.

LEGISLATION

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance)(Administration) Act 1999

Family and Community Services Legislation Amendment (Family Assistance and Related Measures) Bill 2005

REASONS FOR DECISION

6 September 2010              Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1.A decision of Centrelink made on 1 October 2009, and subsequently affirmed by the Social Security Appeals Tribunal on 22 January 2010, to reject Mrs Tuapola’s claim for baby bonus in respect of her adopted son Michael.

ISSUES

2.The questions for consideration before the Tribunal are:

·When was Michael entrusted to Mrs Tuapola’s care?

·If Michael was entrusted to Mrs Tuapola’s care before 1 January 2009, was Michael aged less than two years when he arrived in Australia?

·Was Michael’s arrival in Australia ‘part of the process’ for his adoption?

·If not, was an application for baby bonus made within 26 weeks after he was entrusted to Mrs Tuapola?

BACKGROUND

3.Michael was born on 26 March 2007 in Samoa.  For months Mr and Mrs Tuapola negotiated with a person at the Australian High Commission in Samoa and paid money to assist in arranging the necessary paperwork for Michael’s visas to be arranged.  Allegations of corruption have been made and these are said to have been investigated, although Mrs Tuapola has not been informed of the outcome.

4.On 25 April 2008, Mr and Mrs Tuapola formally adopted Michael, but Michael continued to live with relatives in Samoa, because a visa could still not be arranged.  Mrs Tuapola and her husband continued to provide financial support. 

5.Frustrated at the lack of progress about the visa, Mrs Tuapola left her job of 20 years and went to Samoa on 24 August 2008.  At that time, Michael was placed in her care.  She continued, unsuccessfully, to try to arrange a visa for him.  On 27 November 2008, on legal advice, she and Michael left Samoa for New Zealand, where Mr Tuapola is a citizen (although a permanent resident of Australia).  Michael became a permanent resident of New Zealand.  They lived there until 4 August 2009 at which time, they returned to Samoa to collect Michael's Australian citizenship papers and passport, which had been processed.  Mrs Tuapola then came to Australia, with Michael, arriving on 2 September 2009, at which time he was aged two years and five months.

6.Mrs Tuapola applied for baby bonus in respect of Michael on 1 October 2009 but Centrelink rejected the claim.

7.At about the same time Mrs Tuapola applied for, and was granted Family Tax Benefit in respect of Michael, which was backdated to August 2008.

LEGISLATION

Section 36(5) of,A New Tax System (Family Assistance) Act 1999 (the Act), up until 30 June 2008 provided, relevantly, as follows:

Adoption

(5)  Fourth, an individual is eligible for baby bonus in respect of a child if:

(a)  as part of the process for the adoption of the child by the individual, the child is entrusted to the care of the individual by an authorised party; and

(b)  the child is aged under 2 at the time the child is entrusted to the care of the individual; and

(ba)  if the child arrives in Australia from overseas as part of the process for the adoption of the child—the child is aged under 2 when the child arrives in Australia; and

(bb)  the child is an FTB child of the individual; and

(c)  the individual either:

(i)  is eligible for family tax benefit in respect of the FTB child at any time within the period of 13 weeks starting on the day the child is entrusted to the care of the individual; 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.On 30 June 2008, the Act was amended, removing the requirement that a child arriving in Australia from overseas as part of an adoption process be aged less than two years. Item 44 of Part 4 specifies that the repeal of s 36(5)(ba) applies in relation to children entrusted to care on, or after, 1 January 2009.  For children entrusted to care before 1 January 2009, as was the case in this matter, the provisions that apply are those in force prior to the introduction of the amendments.

CONSIDERATION

9.The Respondent does not dispute that Mrs Tuapola meets the eligibility criteria set out in s 36(5)(a), (b) and (c) of the Act.  

10.Only the application of s 36(5)(ba) remains to be considered. If that section applies, Centrelink submits, Mrs Tuapola has no entitlement to baby bonus, because Michael did not arrive in Australia until he was aged more than two years. Centrelink submits that Michael’s arrival in Australia was ‘part of the process for [his] adoption’, notwithstanding that Michael had been formally adopted on 25 April 2008, when he was less than 2 years of age. It was further submitted that a person could not bring a child to Australia without having undertaken an adoption process in the child’s country of origin, and hence bringing the child to Australia completed the adoption process for the purposes of the Act.

11.I was referred to the explanatory memorandum for the Family and Community Services Legislation Amendement (Family Assistance and Related Measures) Bill 2005, when s36(5)(ba) was introduced. This states:

...to introduce the new maternity payment eligibility requirement that a child being adopted from overseas must arrive in Australia while aged under two.  Therefore, a child being adopted from overseas must meet both age-related criteria – being entrusted to care and arriving in Australia while aged under two.

12.The purpose of introducing this section was to broaden the previous act, which only entitled an adopting parent to payment if the child was entrusted to the care of the parent within the child’s first 26 weeks of life, and if the parent lodged a claim within 26 weeks of the child being entrusted to care. Broadening this section allowed payment to be available to families taking on, as part of an overseas adoption, the care of a child who is aged less than two, and who arrives in Australia before turning two. This measure was taken to recognise that families who adopt children less than two face similar costs to families with newborns who attract the payment.

13.However, the broadening of this section had a clear age limitation. Although it could have been expressed more clearly, the legislative intent in the Act at the relevant time is plain: the child should be under the age of two when he or she arrives in Australia. Mrs Tuapola therefore, does not satisfy the eligibility criteria set out in s 36(5)(ba). As distressing as the circumstances may have been in bringing Michael to Australia, neither the Act nor the A New Tax System (Family Assistance)(Administration) Act 1999 (the Administration Act), allows any discretion in applying the requirement set out in s 36(5)(ba).

14.Centrelink made an alternative submission, in the event I were to find that Michael did not arrive in Australia ‘as part of the process for [his] adoption’: Section 39(2)(c) of the Administration Act .  That section provides: 

39 Restrictions on claiming

“Normal circumstances” baby bonus claim must be made within limited period after birth etc. of child

(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:

…

(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.

15.Mrs Tuapola’s claim for baby bonus – made on 1 October 2009 - is not effective because it was made later than 26 weeks after he was entrusted to her, that is, 24 August 2008. 

16.I make a number of observations which I recommend Centrelink consider:

17.Section 36(5)(ba) was repealed and that ‘baby bonus’ is payable in respect of children entrusted to care on or after 1 January 2009. It now appears to be available in respect of children up to the age of 16, and possibly older, if they are full time students. Mrs Tuapola has a number of associates from her church who have children in this category.

·Mr and Mrs Tuapola sought assistance from the Australian High Commission in Samoa and, were apparently misled by an employee who they believe was dishonest.  They complained bitterly to authorities – both Australian and Samoan – even the Samoan Prime Minister wrote to the High Commissioner in support of Ms Tuapola and encouraged the expediting of their return to Australia.

·No satisfaction has been received despite their complaints.

·By the time Mrs Tuapola was able to bring Michael to Australia she had had to leave her job, and had to spend many months away from her husband - in Samoa and then New Zealand - to be with her son, all the while making efforts to get him to Australia.

·Perhaps the most poignant aspect of the unfortunate history of this matter is that, notwithstanding having committed to adopting Michael from the time of his birth, and formalising that in April 2008, it was not until September 2009 that they were actually able to bring him home. 

DECISION

18.Given the provisions of the relevant legislation in force at the time, and noting that there are no applicable discretionary provisions available, I have no option but to affirm the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: .....................................................................................
           Associate B. Dhanasar

Date of Hearing       30 August 2010
Date of Decision  6 September 2010
Appearance for the Applicant         Ms V Tuapola (Self)
Solicitor for the Respondent           Ms D Ahard