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

This matter concerned an application for a second-tier review by the Applicant, Mr Vidakovic, against a decision by the Secretary of the Department of Social Services. The core dispute revolved around Mr Vidakovic's eligibility for an age pension, specifically in relation to his claim lodged on 13 May 2014. The review was heard by Ms A F Cunningham, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Vidakovic could be granted an age pension based on his claim made on 13 May 2014. This required the Tribunal to consider the provisions of section 29 of the *Administration Act*, which stipulates that a claim for a social security payment can only be made by a person who is an Australian resident and is physically present in Australia. The Tribunal also had to determine if any exceptions to these requirements, as outlined in sections 30 to 32 of the *Administration Act*, applied, particularly in light of an international agreement between Australia and Serbia.

The Tribunal reasoned that section 29 of the *Administration Act* contains conjunctive requirements: the claimant must be an Australian resident and be in Australia at the time of the claim. It was undisputed that Mr Vidakovic was not in Australia when he lodged his claim, thus failing the first limb of section 29. The Tribunal noted that while an international agreement between Australia and Serbia might exempt the Applicant from certain requirements, Serbia was not listed in the relevant schedule of countries with a subsisting agreement under the *Social Security (International Agreements) Act 1999*. Although Mr Vidakovic was an Australian citizen, he was neither an Australian resident nor present in Australia on the date of his claim. The Tribunal found no discretion within the relevant legislation to consider Mr Vidakovic's deteriorating health, which he claimed prevented his return to Australia, as a basis for granting the pension.

Consequently, the Tribunal accepted the submissions made on behalf of the Secretary that the application for review had no reasonable prospect of success. In accordance with section 42B of the *Administrative Appeals Tribunal Act 1975*, the Tribunal ordered that the application for review be dismissed.