Vowles and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 939

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 939

ADMINISTRATIVE APPEALS TRIBUNAL      )           No 2007/6306
  )
GENERAL ADMINISTRATIVE DIVISION        )

Re JOAN VOWLES

Applicants

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date20 October 2008

Place            Sydney

Decision The Tribunal affirms the decision under review.

....(sgd) Ms G Ettinger..............

Ms G Ettinger     
  Senior Member

CATCHWORDS

Australian residence - whether Applicant qualified for age pension – cannot meet 10 qualifying years test - decision under review affirmed.

Social Security Act 1991 ss 7, 43(1)

Migration Act 1958

REASONS FOR DECISION

20 October 2008 Ms G Ettinger, Senior Member     

1.       Mrs Joan Vowles who is now 76 years old, arrived in Australia from the UK of which she is a citizen, on 11 November 1983. She understood from her son that she had permanent resident status, and could remain in Australia. The Respondent, Secretary, Department of Families, Housing, Community Services and Indigenous Affairs says however that her visitor visa expired on 5 May 1984. Eventually the Minister for Immigration and Citizenship intervened and on 30 May 2007 granted Mrs Vowles a Subclass 835 (Remaining Relative) Visa.

2.       Mrs Vowles claimed, and was paid age pension from 10 January 2000 until 24 February 2006 because Centrelink omitted to correctly check on her residency status, and assumed she was qualified for age pension. Accordingly Mrs Vowles incurred a debt which was later waived for administrative error.

3.       I am mindful that at no stage has it been alleged that Mrs Vowles either acted dishonestly in any of her dealings with the authorities. I accept that.

4.       Mrs Vowles has now applied further for age pension which has been rejected on the basis that she did not meet the residency qualifications for age pension when she applied on 12 June 2007. She accordingly appealed her case to this Tribunal in Perth. At her request, and the agreement of the Respondent, the review is being heard on the papers.

5.       I have decided that pursuant to the legislation, Mrs Vowles was not eligible for age pension when she applied on 12 June 2007.  My reasons follow.

ISSUE TO BE DECIDED

6. The issue before me is whether Mrs Vowles was qualified for age pension when she applied on 12 June 2007. I had to consider whether she was residentially qualified, that is whether pursuant to sections 7 and 43(1) of the Social Security Act 1991, (the Act), she had ten years qualifying Australian residence at the relevant date.

LEGISLATIVE CONTEXT

7.       The relevant legislation is the Social Security Act 1991, in particular sections 7 and 43(1). Section 43(1) states that a person is qualified for an age pension if the person has reached pension age, and any of four factors in section 43(1)(a)–(d) apply. In the case of Mrs Vowles, she would qualify if she had ten years qualifying Australian residence, or a qualifying residence exemption for an age pension. The note to section 43(1) refers to section 7 for qualifying Australian residence. The term Australian resident is defined in section 7(2) of the Act.

8. Section 7(5) states that a person has 10 years qualifying Australian residence if the person has at any time been an Australian resident for a continuous period of not less than 10 years, or 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; and

(ii) the aggregate of those periods exceeds 10 years.

CONSIDERATION OF THE FACTS AND LAW

9. In order to decide whether Mrs Vowles was, pursuant to sections 7 and 43(1) of the Act, residentially qualified, and eligible for age pension when she applied for it on 12 June 2007, I took into account all the evidence and submissions as well as the applicable legislation.

Mrs Vowles’ Submission

10.      Mrs Vowles made a written submission which gives an account of her situation, including her anxiety and distress regarding having felt “like a criminal” following the visit from officers of the Department of Immigration in 2005.  She has indicated her financial situation and financial future is a worry as she is of an age where she cannot work in paid employment, receives a pension of only $A260 per month from the UK Government, and had to sell her house in 2005 after cancellation of her age pension.

11. I accept that Mrs Vowles is of an age where she can receive the Australian age pension, and that she was granted a Subclass 835 (Remaining Relative) Visa on 30 May 2007. I noted Mrs Vowles’ statement that in exercising his discretion to intervene and grant her permanent residence, the Minister made a determination pursuant to section 351 of the Migration Act 1958 which was made in the public interest, and responded with care and compassion in the circumstances of her case, and did not require her to leave Australia.

12.      Mrs Vowles also stated that Centrelink failed in its duty to check her residency status before granting her age pension in January 2000, which she received until 2006. Centrelink then waived the debt which she had thus incurred by 2006, thereby acknowledging its error.

13. Mrs Vowles has also referred to section 34 of the Migration Act 1958 and the “absorbed persons” category of persons for which she acknowledges she does not qualify, but which she says she almost satisfied.

14.      Mrs Vowles has asked this Tribunal to recommend that the “Act of Grace” powers in section 33 of the Financial Management and Accountability Act 1997 be invoked so that payments equivalent to the age pension can be made to her until such time as she meets the 10 year residency requirement on 30 May 2017.

The Respondent

15.      The Respondent has informed me that Mrs Vowles has been paid Widow Allowance effective from 25 February 2008, and that she has made an application for an Act of Grace payment which is yet to be determined.

16. However, the Respondent’s submitted that on 12 June 2007 Mrs Vowles did not satisfy all of the qualification criteria of section 43(1) of the Act, and that her claim for age pension could therefore not be granted. The Secretary submitted that the decision of the Social Security Appeals Tribunal should therefore be affirmed.

The Tribunal

17.      I am mindful that the main reason for the rejection of Mrs Vowles’ application was that she had not been an Australian resident for a continuous period of not less than ten years (section 7 and 43(1) of the Act).

18. It is not in dispute that Mrs Vowles does not meet the conditions in section 7(5) of the Act because she does not have 10 years qualifying Australian residence, and has not at any time been an Australian resident for a continuous period of not less than 10 years. She could qualify to be an Australian resident pursuant to section 7(5) if she had been an Australian resident during more than one period, and at least one of those periods was 5 years or more, and the aggregate of those periods exceeded 10 years. However unfortunately she does not meet those tests.

19. Section 7 provides:

7  Australian residence definitions

7(1)  In this Act, unless the contrary intention appears:

Australian resident has the meaning given by subsection (2).

…

qualifying Australian residence has the meaning given by subsection (5).

20. The term Australian resident is defined in section 7(2) of the Act as follows:

7(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;

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

Note:       For holder and permanent visa see subsection (1).

21. Section 7(5) states that a person has 10 years qualifying Australian residence if the person has at any time been an Australian resident for a continuous period of not less than 10 years, or 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; and

(ii) the aggregate of those periods exceeds 10 years.

22. Section 7(6AA) of the Act provides that a family member of a refugee, or a former refugee, or a person who holds, or previously held a visa in a class of visas determined by the Minister for the purposes of this paragraph, has a qualifying residence exemption for age pension. The Secretary contended, and I accept that Mrs Vowles does not fit into either of those categories.

23.      I next considered the various subsections of section 43.

Section 43(1)(a)  - qualifying Australian residence

24.      If a person such as Mrs Vowles who has reached pension age, has 10 years qualifying Australian residence, she is qualified for age pension. I have already stated above, and it is not in dispute, that Mrs Vowles does not so qualify.

Section 43(1)(b) - a qualifying residence exemption

25.      Section 43(1)(b) of the Act provides that a person can qualify for age pension if they have a qualifying residence exemption. Unfortunately I cannot find that Mrs Vowles has such an exemption.

Section 43(1)(c) – the person received payment of widow B pension, widow allowance, mature age allowance or partner allowance immediately before age pension age.

26.      Mrs Vowles did not receive any of the abovenamed payments prior to reaching age pension age, and therefore does not satisfy this subsection of the Act.

Section 43(1)(d) – if the person reached age pension age prior to 20 March 1999 and received widow B pension, widow allowance, or partner allowance immediately before 20 March 1997.

27.      Although Mrs Vowles reached age pension age on 8 June 1997, she did not receive any payments of widow B pension, widow allowance, mature age allowance or partner allowance immediately before 20 March 1997, so does not meet the requirements of this section of the Act.

28. Since Mrs Vowles did not meet any of the qualification criteria for section 43(1) of the Act, I considered whether Mrs Vowles qualified for age pension under section 43(1A) of the Act.

Section 43(1A) – Further possibilities

29.      I am mindful of the Respondent’s submission, and accept that Mrs Vowles does not qualify for age pension under section 43(1A) of the Act because she was not an Australian resident when her husband died in 1981, nor later when her partner died in 2002. Because Mrs Vowles only became an Australian resident on 30 May 2007, she was not an Australian resident for a period of at least 104 weeks immediately before the day she lodged her claim for age pension on 12 June 2007.  She does not qualify for age pension pursuant to section 43(1A) of the Act.

Section 43(3)

30.      Section 43(3) of the Act does not apply to Mrs Vowles as the international social security agreement between Australia and the UK was terminated on 1 March 2001.

CONCLUSION

31.      I am not satisfied that Mrs Vowles met the requisite residency requirement at the relevant time of her application on 12 June 2007.  Mrs Vowles, whilst of pension age, cannot qualify, and is not eligible for age pension because she does not meet the residency requirements. The decision under review must be affirmed.

DECISION

32.      The Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed: (sgd) T Freeman ............................................  Associate

Date of Hearing  Decided on the papers
Date of Decision  20 October 2008

The Applicant  Self represented

Advocate for the Respondent   Ms M Conlon