Uddin and Secretary, Department of Social Services (Social services second review)

[2015] AATA 815

Uddin and Secretary, Department of Social Services (Social services second review) [2015] AATA 815 (21 October 2015)

Division

GENERAL DIVISION

File Number(s)

2015/2567

2015/2577

Re

Samir Uddin

Monoara Begum

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	21 October 2015
Place	Sydney

The Tribunal affirms the decisions under review.

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

Senior Member J F Toohey

CATCHWORDS – Social Security – Age Pension – qualifying Australian residence – international agreement – working age residence – interpretation of agreement – insufficient qualifying period of residence – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 ss 7(5), 43

Social Security (International Agreements) Act 1999 s 6 and Sch 3

Social Security (Administration) Act 1991 s 29

Cases

Secretary, Department of Families, Community Services and Indigenous Affairs and Park [2007] AATA 1190

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Uddin and Ms Begum are citizens of Bangladesh.  Prior to becoming permanent residents in Australia on 13 June 2013, they lived in New Zealand between 4 July 2000 and 16 July 2002. 

2. Mr Uddin and Ms Begum reached age pension age on 25 February 2002 and 24 May 2013 respectively.  This matter concerns a decision to reject their claims for age pension made in December 2013 on the basis they did not meet the residence requirements to qualify for the payment at the time of their claims.

3. The matter was listed for a directions hearing by telephone on 25 August 2015 at which time it appeared to the Tribunal that the issues for determination on the review of the decision could be adequately determined in the absence of the parties.  With the parties’ consent, the Tribunal decided the review of the decision would be done without holding a hearing by considering the documents provided to the Tribunal. 

4. In addition to the documents filed by the Secretary under s 37 of the Administrative Appeals Tribunal Act 1975, I have taken into consideration submissions of the applicants received on 4 June 2015 and again on 7 July 2015, as well as a letter addressed to “The President, Administrative Appeals Tribunal” dated 23 September 2015, and a document filed by the Secretary titled “Respondent’s Statement of Facts & Contentions” dated 9 September 2015 and received by the Tribunal on the same date.

   The legislation

5. The relevant legislation is contained in the Social Security Act 1991 (SS Act) and the Social Security (International Agreements) Act 1999 (International Act).

6. To qualify for age pension a person must have reached pension age at the time of the application and, relevantly, have 10 years of qualifying Australian residence: s 43 of the SS Act.

7. Section 7(5) of the SS Act states a person has 10 years qualifying Australian residence if:

   (a)  the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

   (b)  the person has been an Australian resident during more than one period and:

   i.at least one of those periods is 5 years or more;

   ii.    the aggregate of those periods exceeds 10 years.

8. The International Act contains an agreement between the Australian and New Zealand governments to coordinate their respective social security systems and to enhance the equitable access by people covered by the agreement to specified social security benefits provided under the laws of both countries: Sch 3, Part A of the International Act.

9. Section 6 of the International Act provides that the international agreement overrides Australian social security law to the extent that it affects those laws.  This means that the International Act changes the operation of specific provisions of the respective countries’ social security laws.  Unless a specific provision of social security law is affected by the International Act it remains in force and unchanged.  The International Act does not override the entire social security law of each country, it operates alongside their social security legislation and only affects specific parts of the law.  For example, the number of years (10) qualifying residence for age pension specified in s 43(1)(a) of the SS Act remains unchanged by the International Act.  The way in which a claimant may satisfy that specific requirement has been changed for people covered by the international agreement.  These changes are described in detail below. 

10. Schedule 3 of the International Act contains the relevant international agreement with New Zealand.  The schedule is divided into six parts.  Relevant to these proceedings are Part I headed “Definitions and Scope” which contains Articles 1 to 5, and Part III headed “Provisions relating to Australian Benefits” which contains Articles 11 to 13.  Articles 6 to 10 under Part II headed “Provisions relating to New Zealand Benefits” do not apply to Mr Uddin and Mrs Begum as they concern benefits that may be claimed under New Zealand social security law.

    Part I Definitions and Scope

11. Relevant to these proceedings is Article 5 which provides a definition of “Australian resident” and “working age residence”.  There is no argument Mr Uddin and Ms Begum meet the definition of Australian resident for the period they have lived in Australia. 

12. “Working age residence” is defined as a period of residence between the ages of 20 and 64, and is relevant to determining the period of residence in New Zealand which may be deemed to be a period for which the person was an Australian resident for the purposes of meeting the minimum qualifying period for a benefit.    

    Part III Provisions relating to Australian Benefits

13. Article 11 overrides the requirement in s 29 of the Social Security (Administration) Act 1991 that a claimant be an Australian resident and physically present in Australia on the day a claim for age pension is submitted.  This provision is not relevant to Mr Uddin and Ms Begum as they were Australian residents and in Australia on the day they made their claims.

14. Article 12 overrides the requirement of s 43(1)(a) of the SS Act to the extent claimants of age pension are required to have 10 years qualifying Australian residence as defined by section 7(5) of the SS Act.  Periods of working age residence in New Zealand can be counted as periods of Australian residence to meet the minimum residence requirements for a benefit under the SS Act.  This means the years of New Zealand residence which may be counted towards a period of Australian residence for the purposes of a claim for age pension are the years which the claimant resided in New Zealand between the ages of 20 and 64.

15. Article 13 concerns the calculation of Australian benefits and is not relevant to this review.

    Consideration

16. The issue I am required to determine is whether Mr Uddin and Ms Begum qualified for age pension on the date of their claims, being 30 December 2013 and 4 December 2013 respectively.  In particular, I am to determine whether, at that time, Mr Uddin and Ms Begum had 10 years qualifying Australian residence.  

17. The correct operation of the law was described by this Tribunal in Secretary, Department of Families, Community Services and Indigenous Affairs and Park [2007] AATA 1190. The relevant excerpt of that decision has been reproduced in the SSAT’s decision and the Secretary’s statement of facts and contentions. It is not necessary to reproduce it again here.

18. It is undisputed Mr Uddin attained 20 months, and Ms Begum 25 months, working age residence in New Zealand.

19. Mr Uddin and Ms Begum became permanent residents of Australia on 13 June 2013.  There is no argument that between June 2013 and December 2013 they were Australian residents for the purposes of a claim for age pension. 

20. For Mr Uddin, the total period of qualifying residence at the time of his claim for age pension was 20 months working age residence in New Zealand and approximately six months Australian residency, totalling 26 months qualifying residence. 

21. For Ms Begum, the total period of qualifying residence at the time of her claim for age pension was 25 months working age residence in New Zealand and approximately six months Australian residency, totalling 31 months qualifying residence. 

22. Unfortunately for Mr Uddin and Ms Begum their qualifying residence falls short of the 120 months required by s 43(1)(a) of the SS Act.

    Conclusion

23. Mr Uddin and Ms Begum did not meet the minimum qualifying period of residence to qualify for age pension at the date of their respective claims under the SS Act and the International Act.  The decision to reject the applicant’s claim for age pension was correct.  I affirm the decisions under review.

24.     I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

.........................................
Associate

Dated 21 October 2015

Representative for the Applicant		Self-represented
Representative for the Respondent	Nicole Clarke, Government Lawyer