Ugur Hatibi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 396

[2013] AATA 396

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3639
Re	Ugur Hatibi
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	13 June 2013
Place	Melbourne

The Tribunal affirms the decision under review.

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Miss E A Shanahan, Member

SOCIAL SECURITY – age pension – pension bonus scheme – failure to satisfy 10 year residency requirement prior to 21 February 2012 – ineligible for pension bonus scheme – ineligible for pension deferred bonus – decision affirmed.

Legislation

Social Security Act 1991

Social Security and Veterans’ Affairs Legislation Amendment (Pension Bonus Scheme) Act 1998

Migration Act 1958

REASONS FOR DECISION

Miss E A Shanahan, Member

13 June 2013

1. On 30 December 2011 Mr Hatibi lodged a claim with Centrelink for the age pension and payment of the pension deferred bonus (PDB).  A Centrelink officer granted the age pension effective from 21 February 2012 but rejected the claim for the PDB on the same date.  Mr Hatibi sought a review of the decision rejecting his entitlement to the PDB by an authorised review officer (ARO).  On 3 April 2012 the ARO affirmed the Centrelink officer’s decision as Mr Hatibi did not satisfy the requirement of 10 years of permanent residency when his registration into the pension bonus scheme (PBS) was accepted on 25 February 2007.

2. Mr Hatibi sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 26 July 2012 the SSAT affirmed the ARO’s decision. Mr Hatibi sought a review of the SSAT decision by the Administrative Appeals Tribunal on 21 August 2013.

3. It appeared to the Tribunal that the issues for determination could be adequately determined in the absence of the parties. The parties consented to a review of the decision in their absence. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975, the Tribunal conducted the review on the papers, relying on the evidence contained in the documents lodged pursuant to s 37 of the AAT Act (the T‑documents). 

   BACKGROUND TO THE APPLICATION

4. Mr Hatibi states that he arrived in Australia on 26 July 1991 (T16) and that three months after his arrival he was granted permission to work (T16).  A letter from the Department of Immigration and Ethnic Affairs dated 22 September 1994 (T3, p10) advised Mr Hatibi that approval to work had been granted following changes to the Migration Act 1958 (the Migration Act).In 1994 the Department of Immigration and Citizenship (DIAC) issued Mr Hatibi with a bridging visa (subclass 010).  DIAC subsequently issued further bridging visas until 4 September 1999, when he qualified for a temporary visa (subclass 820) following his application for a permanent spouse visa.  On 21 February 2002 Mr Hatibi was issued with a permanent resident visa (subclass 801).  For the purposes of the 10 year permanent residency requirement for the age pension and for the PDB, Mr Hatibi’s qualifying residency period commenced on that date.

5. Mr Hatibi states he obtained a protection visa (subclass 866) on 24 August 1990, approximately a year before he arrived in Australia.  On arrival he claimed refugee status.  He was regarded by the authorities as being stateless on arrival.  He claimed to be a political refugee from his country of birth, Albania.  The Department of Immigration and Ethnic Affairs did not grant him refugee status and Mr Hatibi appealed this decision to the Refugee Review Tribunal (RRT).  The RRT affirmed the decision on 6 November 1995, on the basis that Mr Hatibi did not meet the guidelines for staying in Australia on humanitarian grounds.  By letter dated 30 November 1995, Mr Hatibi’s requested the Minister for Immigration and Ethnic Affairs, The Honourable Senator Nick Bolkus, to exercise his personal discretion under the Migration Act and grant him a visa on humanitarian grounds (T5). This request was also unsuccessful 4).

6. Mr Hatibi became an Australian citizen on 10 May 2004. From 7 February 1995 until 24 February 2012, he worked full-time as a hatchery assistant with Baida Select Poultry.  Mr Hatibi has provided copies of his income tax assessments from the Australian Taxation Office for the financial year ending 30 June 1993 and thereafter.  The assessment for the year ending 30 June 1993 refers to his income tax return of 30 June 1992. 

7. On 9 January 2007 Mr Hatibi completed the age pension section of a Centrelink form titled Claim for Age Pension and Pension Bonus Scheme, presumably in anticipation of turning 65 on 25 February 2007.  Mr Hatibi lodged the claim form with Centrelink’s Cranbourne office on 9 January 2007 and with the Age Team, Centrelink office in Springvale on 12 January 2007.  Mr Hatibi was assigned a customer registration number (CRN) on 25 January 2007.On 2 February 2007 Mr Hatibi provided Centrelink’s Cranbourne office with copies of the RRT decision dated 6 November 1995 and the letter to the Minister for Immigration and Ethnic Affairs dated 30 November 1995 (T5). 

8. A Centrelink officer rejected Mr Hatibi’s claim for the age pension on 25 January 2007 on the basis that he did not meet the 10 year qualifying residency requirement.  An ARO reviewed the Centrelink officer’s decision and affirmed it on 30 April 2007.  Mr Hatibi appealed this decision to the SSAT on 25 May 2007.  The SSAT affirmed the ARO’s decision on 10 July 2007 (T15). 

9. Mr Hatibi completed a Centrelink form titled Registration for the Pension Bonus Scheme on 14 August 2008 (T17, p78).  He lodged the form with Centrelink’s Cranbourne office on 18 August 2008 (T18).  In response to question 5 in the form, Mr Hatibi identified his country of birth as Albania. In response to question 11, Mr Hatibi indicated that he had been granted a refugee or humanitarian visa by the Australian Government by answering yes.  In response to question 12, Mr Hatibi indicated that he had never lived outside Australia by answering no.  This form identified Mr Hatibi with the different CRN to that assigned on 25 January 2007.

10. On 20 August 2008 Centrelink requested that Mr Hatibi provide further information relating to his claim for PDB (T19, p84).  Mr Hatibi completed a Centrelink form titled Life residence in Australia and other countries on 26 August 2008. Mr Hatibi lodged the form with Centrelink’s Cranbourne office on the same day.  In this form, Mr Hatibi provided the dates he had lived in Albania and the date of arrival in Australia, clarifying the obvious conflicting information in his form mentioned in paragraph 9.  However, he again answered the question are you a permanent visa holder (this includes refugee visa) in the affirmative, advising that the permanent residence visa had been granted on 20 September 1994. This was clearly incorrect, as on that date Mr Hatibi was provided with a bridging visa Class A (subclass 010), which is not a permanent visa. 

11. By letter dated 4 September 2008, Centrelink notified Mr Hatibi that he had been accepted as a member of the PBS from 25 February 2007 (the date on which he turned 65).  Thereafter, Mr Hatibi received letters from Centrelink annually, verifying that he had satisfied the annual hours of work required to sustain PBS registration/eligibility.  The SSAT decision of 26 July 2012 refers to a record of interview between a Financial Information Services Officer (FISO) from Centrelink and Mr Hatibi on 19 August 2011.  The FISO advised Mr Hatibi that he would receive a pension bonus payment of $42,238 (T2, p4). 

12. As previously stated, Mr Hatibi qualified for the age pension on 21 February 2012.  His claim for payment of the pension bonus was rejected on the same date and is the subject of this review.

    RELEVANT LEGISLATION

13. The Social Security Act 1991 (the Act) sets out the qualification for age pension in s 43 which states:

    43Qualification for age pension

    (1)A person is qualified for an age pension if the person has reached pension age and any of the following applies:

    (a)     the person has 10 years qualifying Australian residence;

    (b)     the person has a qualifying residence exemption for an age pension;

    …

14. Section 7(2) of the Act defines the term Australian resident as follows:

    7Australian residence definitions

    …

    (2)An Australian resident is a person who:

    (a)     resides in Australia; and

    (b)     is one of the following:

    (i)an Australian citizen;

    (ii)   the holder of a permanent visa;

    …

15. Section 92A of the Act outlines the PBS as follows:

    92A  Simplified outline

    The following is a simplified outline of this Part:

    ·A person who qualifies for an age pension but defers claiming that pension may be able to get a single lump‑sum pension bonus.

    ·A person who wants to get a pension bonus must register as a member of the pension bonus scheme.

    ·To get a pension bonus, a person must accrue between 1 and 5 bonus periods while deferring age pension.

    ·Generally, a bonus period runs for 1 year.

    ·To accrue a bonus period, the person must pass the work test for that period.

    ·To pass the work test for a year, either the person, or the person’s partner, must gainfully work for at least 960 hours during that year.

    ·The amount of a person’s pension bonus depends on the number of accrued bonus periods and the person’s annual rate of age pension. A person may get a bigger bonus by accruing more bonus periods.

16. Section 92H of the Act (inserted by the Social Security and Veterans Affairs Legislation Amendment (Pension Bonus Scheme) Act 1998 with effect from 30 June 1998) provides:

    92HTiming of application and registration

    Age pension qualification date on or after 1 July 1998

    (1)If a person’s date of qualification for the age pension occurs on or after 1 July 1998:

    (a)     the person must lodge an application during the period that begins 13 weeks before the person’s date of qualification for the age pension and ends 13 weeks after that date; and

    (b)     if registration occurs as a result of an application lodged within that period—the registration takes effect on the person’s date of qualification for the age pension.

    …

    DETERMINATION OF THE TRIBUNAL

17. It is clear that Mr Hatibi considers himself to be a refugee. However, it is equally clear, on the documentary evidence before the Tribunal, that he did not meet the legislative requirements for refugee status. He became a permanent resident as defined in the Migration Act on 21 February 2002; and for the purposes of social security benefits his qualifying residency status commenced on that date. He therefore qualified for the aged pension on 21 February 2012. However, at the time of his registration for the PBS he had a qualifying residency of five years only and not the 10 years dictated by s 92H of the Act.

18. On 19 August 2011 Mr Hatibi consulted the FISO, who advised that Mr Hatibi would receive a pension bonus payment of $42,238 when he qualified for the age pension.  Presumably, Mr Hatibi organised his affairs on the basis of this advice and lodged his application for the age pension on 30 December 2011.  His claim for the PDB was rejected on 21 February 2012 as he did not satisfy the requirement of 10 years permanent residency prior to registration into the PBS on 25 February 2007. 

19. This decision was correct.  The ARO who found that Mr Hatibi’s registration for the PBS had been invalid, based on the information provided by Mr Hatibi that he had obtained refugee status in September of 1994.  The ARO did acknowledge in his decision that two CRN numbers or records had been created in Mr Hatibi’s name.  The CRN related to the age pension was now the only effective number. The CRN number assigned for his PBS registration had not been used as of 20 February 2012. 

20. The Tribunal is not in a position to determine whether Mr Hatibi’s incorrect entry, in his claim for registration as a member of the PBS, that he was the holder of a refugee visa, was an intentional effort to deceive, a misunderstanding of the nature of his bridging visa or simply reflects his belief that he is a refugee.  The information given remains erroneous and so misleading as to result in his registration for the PBS.  However, he had provided the correct information by providing copies of the RRT decision dated 6 November 1995 and the letter to the Minister for Immigration and Ethnic Affairs dated 30 November 1995 (as per para 7) presumably when filing his 2007 application for the age pension. 

21. Had he not been assigned two identification numbers or CRNs by Centrelink, this information would have been readily accessible to the Centrelink officer who determined his eligibility for registration in the PBS.  This combination of factors has led to Mr Hatibi being incorrectly registered for the PDB payment of $42,238, to which he is not entitled.

22. The Tribunal affirms the decision under review.

23. Given the existence of two files in Mr Hatibi’s name, which is said to be contrary to Centrelink procedure, and given the apparent absence of cross-referencing of the files, the Tribunal recommends that the Secretary consider compensating Mr Hatibi in accordance with the Scheme for Compensation for Detriment caused by Defective Administration.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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Associate

Dated        13 June 2013

Date of hearing on papers	6 May 2013
Applicant	Mr Ugur Hatibi
Solicitors for the Respondent	Tim de Uray, Program Litigation and Review Branch, Department of Human Services