Vijay PABBI and Secretary, Department of Social Services

[2015] AATA 264

[2015] AATA 264

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5183
Re	Vijay PABBI
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	7 April 2015
Date of written reasons	28 April 2015
Place	Sydney

The decision under review is affirmed.

..........................[sgd]..............................................

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – application for Commonwealth Seniors Health Card – newly arrived resident’s waiting period – whether applicant was both an Australian resident and present in Australia during the relevant period – meaning of “resides in Australia” – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 7(3), 7(2), 1061ZH, 1061ZG, 1061ZI

REASONS FOR DECISION

Dr Ion Alexander, Member

28 April 2015

BACKGROUND

1. On 18 October 2013 Mr Pabbi lodged a claim for a Commonwealth Senior’s Health Card (CSHC).

2. Mr Pabbi’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeal Tribunal (SSAT) on 1 September 2014 on the basis that despite being an Australian resident for 104 weeks at the date of the claim, he had not been both an Australian resident and also present in Australia for a period totalling 104 weeks as required by section 1061ZH(1)(b) of the Social Security Act 1991 (Cth) (the Act).

3. At the hearing Mr Pabbi was self-represented and was able to make submissions.

   ISSUES

4. In order to qualify for a CSHC a person must satisfy the requirements set out in section 1061ZG of the Act.  Section 1061ZG(1)(g) provides that that a person is qualified for a CSHC if the person “is not subject to a newly arrived resident’s waiting period”. 

5. It is not disputed that Mr Pabbi was subject to a newly arrived resident’s waiting period.

6. It is also not disputed that the waiting period is 104 weeks which starts on the day on which person first became an Australian resident in accordance with section 1061ZI(a) of the Act.

7. It is agreed that Mr Pabbi became an Australian resident on 18 October 2011 and that his waiting period started on this day.

8. Section 1061ZI(b) of the  Act provides that the waiting period ends when the person has been both:

   (i) an Australian resident or a special category visa holder residing in Australia; and

   (ii) in Australia;

   for a period of, or for periods totalling, 104 weeks.

9. Mr Pabbi contends that he had been an Australian resident for 104 weeks on 18 October 2013, the date of the claim, and did qualify for CSHC on that day.

10. The Respondent agrees that at the date of the claim Mr Pabbi had been an Australian resident for exactly 104 weeks but contends he was absent from Australia for two periods of approximately 12 weeks each during the relevant period.

11. It is agreed that Mr Pabbi was absent from Australia from 14 November 2011 to 11 February 2012 and 7 November 2012 to 4 February 2013, approximately 24 weeks.

12. Given the above absences, the Respondent contends that Mr Pabbi did not satisfy section 1061ZI(b) of the Act in that he had not been physically present for a total of 104 weeks as at the date of the claim.

13. Mr Pabbi contends that section 7 of the Act allows for periods of temporary absence and that this applies to the 104 weeks required by the newly arrived resident’s waiting period.

14. The definitive issue in this application is whether Mr Pabbi satisfied section 1061ZI of the Act.

    CONSIDERATION

15. The Respondent contends that the words “in Australia” in section 1061ZI(b)(ii) should be interpreted as meaning “physically present in Australia” and as Mr Pabbi had not been physically present in Australia for a period of 104 weeks between 18 October 2011 and 18 October 2013 the requirements of section 1061ZI had not been satisfied.

16. Mr Pabbi contends that it is sufficient to be an Australian resident for the required period and relies on section 7(3) of the Act and paragraph 2.2.4.20 of the Guide to Social Security Law which outlines the factors to be taken into account when deciding if a person “resides in Australia”.

17. Section 7(2) of the Act  defines an  Australian resident as 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

    (iii) a special category visa holder who is a protected SCV holder.

18. In my view the factors set out in section 7(3) of the Act are to be considered in respect of the definition of an Australian resident in section 7(2) and not factors to be considered in respect of the duration of newly arrived resident’s waiting periods for the purposes of qualification for a CSHC.

19. In my reading of section 1061ZI(b) there is clear intent for an additional requirement to being an Australian resident and the plain meaning of “in Australia” should be read as meaning “physically present in Australia”.

20. It follows that as Mr Pabbi was not physically present in Australia for a period of 104 weeks between becoming an Australian resident and the date of claim on 18 October 2013, he did not satisfy section 1061ZI of the Act and did not qualify for a CSHC.

    DECISION

21. For the reasons set out above the decision under review is affirmed.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

........................[sgd]...............................................

Associate

Dated 28 April 2015

Date of hearing	7 April 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services