Volkan and Department of Family and Community Services

[2001] AATA 982

DECISION AND REASONS FOR DECISION [2001] AATA 982

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/115

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      BEKIR VOLKAN    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date30 November 2001

PlaceHobart

Decision      The decision under review is affirmed.             
   [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Social Security – family tax benefit – applicant and children residing overseas.
A New Tax System (Family Assistance) Act 1999 – ss21(1A), 22

REASONS FOR DECISION

30 November 2001 Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by a Centrelink Officer on 3 August 2000 to cease payment to him of the proportion of his disability support pension which relates to his two dependent children.  The decision of the Centrelink officer was affirmed by an authorised review officer on 8 December 2000 and by the Social Security Appeals Tribunal on 12 June 2001.

2. As the applicant resides in Cyprus, both parties consented to the Tribunal deciding the application on the basis of the documentary evidence filed without the need for either party to appear before the Tribunal.   

3. The material filed comprised the "T" documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and correspondence received from the applicant, dated 16 July 2001 and 24 September 2001.

4. The applicant has asked the Tribunal to review the decision in light of his difficult financial circumstances.    He informed the Tribunal in his correspondence that since he left Australia to reside in Cyprus, his wife's pension had been discontinued and now his family allowance had been cut.   The applicant explained how he needed the money in order to educate his children, two of whom are still at school.   It is his belief that his three children will return to reside in Australia at some time in the future.   In the applicant's opinion "the laws must be elastic".   It is his contention that the laws should be flexible enough to take account of an individual's particular circumstances.    As the applicant stated in his correspondence the laws should "work forward not backward".

5. The applicant and his family, including two children born on 16 March 1985 and 21 September 1986 left Australia permanently on 17 July 1987 to reside in northern Turkish-occupied Cyprus and have continued to reside there until the present time.   The applicant's third child was born a month after arriving in Cyprus.

6. The "T" documents reveal that at the time of his departure, the applicant was in receipt of an invalid pension and his wife was receiving a wife pension.   Additional payments were also received in relation to the children.    The applicant's wife's pension was cancelled on 4 July 1991 as she did not have the necessary working life residence period to qualify for a continuation of the wife pension after being absent from Australia for 12 months.

7. By virtue of a savings provision contained in changes to the Social Security Act 1991 ("the Act") on 1 January 1993, the applicant continued to receive payment of "dependent child add-ons" whilst he was living overseas.

8. As a result of further changes made to the Act on 1 July 2000, pensioners residing outside of Australia could not rely on the savings provisions for payment of the "dependent child add-ons".

9. The changes were made by the introduction of the A New Tax System (Family Assistance) Act 1999 and the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 1) 1999 which repealed existing payment mechanisms and made provision for three distinct payments.

10. The legislation referred to above now requires that for an individual to qualify for a family tax benefit he must have at least one family tax benefit (FTB) child.   The FTB child must be aged under 18 years and in the care of that individual who is an Australian resident (s22).

11. The evidence before the Tribunal is that the applicant and his children are residing in Cyprus and have continued to do so since they left Australia in 1987.   Neither therefore could it be claimed that the applicant "is temporarily absent from Australia for a period not exceeding 26 weeks". (s21(1A))

12. The applicant's payments for family tax benefit were cancelled in accordance with the changes to the legislation as outlined above with effect from 1 July 2000.   There is no provision in the Social Security Agreement between Australia and Cyprus relating to the payment of additional child payments which could assist the applicant.

13. Whilst it is the applicant's contention that the laws should be flexible enough to accommodate an individual's particular circumstances and the Tribunal appreciates that the cancellation of these additional payments may cause him hardship, the Tribunal must nevertheless determine the appeal in accordance with the relevant legislation.    The changes to the Social Security legislation effective from 1 July 2000 do not afford  the exercise of any discretion in this case.   The Tribunal must accordingly affirm the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed:         K L Miller
  Personal Assistant

Date/s of Hearing    Overseas Application - matter decided on the papers.

Date of Decision     30 November 2001