Weldemichael and Department of Family and Community Serivces - [2002] AATA 309

DECISION AND REASONS FOR DECISION [2002] AATA 309

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/635
GENERAL ADMINISTRATIVE DIVISION
  Re:         KIFLE WELDEMICHAEL
  Applicant
  And:       SECRETARY TO THE

DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             3 May 2002
Place:            Melbourne

Decision:The Tribunal:
(a)sets aside the decision that a newly arrived resident's waiting period applied to the applicant's claim for newstart allowance; and
(b)affirms the decision that a newly arrived resident's waiting period applied to the applicant's claim for a low income health care card.

(sgd) M.J. Carstairs
Member
SOCIAL SECURITY – newstart allowance – Australian resident – residing in Australia - newly arrived residents waiting period – health care card - newly arrived resident waiting period
Social Security Act 1991 ss7, 623A
Social Security Legislation Amendment (Concession Cards) Act 2001
Health Insurance Act 1973 s5BA
Migration Act 1958

Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 122 ALR 453

Lee v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 222
Re Clifopoulos and Secretary to the Department of Social Security (1995) 36 ALD 745

REASONS FOR DECISION

3 May 2002 M.J. Carstairs, Member

This is an application by Kifle Weldemichael (the applicant) for review of two decisions, the first dealing with a claim for newstart allowance, and the second a claim for a low income health care card. On 20 April 2001 the Social Security Appeals Tribunal (SSAT) affirmed the decisions made by a Centrelink delegate of the Secretary to the Department of Family and Community Services that the applicant was required to serve a newly arrived resident's waiting period before newstart allowance or a low income health care card could be granted to him.
The hearing was held on 8 November 2001 and on 14 February 2002. On the first day of hearing the applicant represented himself and on the second day of hearing Mr P. Jarrett from the Springvale Community Aid and Advice Bureau represented the applicant. Ms E. King, an advocate with Centrelink, represented the respondent.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, as well as the respondent's Statement of Facts and Contentions dated 2 November 2001. The respondent lodged a further submission on 22 November 2001. Both the applicant and the respondent lodged additional submissions, on 22 February and 28 February 2002 respectively, in response to a request made by the Tribunal for the parties to consider whether the applicant might be exempted from the newly arrived resident's waiting period for newstart allowance.
BACKGROUND
The applicant is aged 43 years and was born in Eritrea. He has had refugee status in Germany since 1980. He first came to Australia on 28 February 1991 and left on 23 March 1991. On 4 January 1994 the applicant was granted permanent residence. Since then he has arrived and departed from Australia on the following dates:

arrived 28 May 1994 and departed 13 June 1994
arrived 26 May 1997 and departed 4 June 1997
arrived 25 November 1997and departed 5 May 1998
arrived 3 August 1998 and departed 27 October 1998
arrived 19 April 1999 and departed 11 October 1999
arrived 15 December 1999

The applicant claimed newstart allowance on 3 November 2000 (T3). He claimed a low income health care card on 6 December 2000. A decision was made by a Centrelink delegate on 3 November 2000 to impose a newly arrived resident's waiting period on the claim for newstart allowance (T9). This imposes a period of two years before a person newly arrived in Australia can access certain benefits including newstart allowance. On 7 December 2000 the same waiting period was applied to the claim for the low-income health care card.
In both decisions the starting date for the waiting period was calculated as the date of the applicant's most recent entry into Australia (15 December 1999). Therefore the applicant was not entitled to be paid newstart allowance or be issued with a health care card until 12 December 2001.
The applicant sought review of both decisions. On 19 December 2000 an authorised review officer affirmed the original decision in regard to the claim for newstart allowance. On 24 January 2001 another authorised review officer affirmed the decision in regard to the health care card.
The applicant then applied to the SSAT for review of both decisions. The SSAT affirmed the decisions on 20 April 2001. After the SSAT decision was made, Mr Jarrett wrote to Centrelink on 24 May 2001 (T17) requesting that special benefit be paid to the applicant, as he was homeless and without income. On 30 May 2001 Centrelink granted special benefit to the applicant. The delegate decided that the newly arrived resident's waiting period should be waived because the applicant had experienced a substantial change in his circumstances. The provision to waive a newly arrived resident's waiting period is available for special benefit but not for other payments such as newstart allowance.
On 1 June 2001 the applicant sought review of the SSAT's decisions about newstart allowance and the health care card.
EVIDENCE
At the first day of hearing the applicant did not dispute the factual matters as found by the SSAT dealing with the question of his residence. On the second day of hearing, Mr Jarrett confirmed that the factual findings of the SSAT were accepted. Those findings of the SSAT were as follows:
3.1 …
a)Mr Weldemichael has had refugee status in Germany since 1980 and that status is current.
b)Mr Weldemichael was granted permanent residence in Australia on 4 January 1994 and first entered Australia on 28 May 1994.
c)Mr Weldemichael lodged a claim for newstart allowance on 3 November 2000.
d)Mr Weldemichael has resided as a tenant at the same address in Germany since November 1992. His tenancy is still current.
e)Since first arriving in Australia in May 1994, Mr Weldemichael has returned to Germany on 13 June 1994, 4 June 1997, 5 May 1998, 27 October 1998, and 11 October 1999. Between 25 November 1997 and 15 December 1999 Mr Weldemichael spent approximately 11 months in Germany and 14 months in Australia.
f)Prior to Mr Weldemichael's arrival in November 1997, he stayed at the King Street Hotel. On arrival on 25 November 1997, Mr Weldemichael stayed in accommodation in Flinders Street. He then obtained temporary accommodation at a Salvation Army property in Coburg. After 15 December 1999 Mr Weldemichael rented accommodation from a friend.
g)Mr Weldemichael has no family in Australia. He has a brother and sister in Germany. His parents and two other siblings live in Eritrea.
h)While in Germany at different times during the period 13 June 1994 to 15 December 1999, Mr Weldemichael has worked, studied or received unemployment benefits when unemployed.
i)While in Australia he worked for approximately 3 months for Ozwave during the period 17 February 1998 to 4 May 1998. He also worked for Straightway Motors and Melbourne Personnel Services between 12 August 1999 to 20 August 1999 and between 2 July 1999 and 16 July 1999 respectively.
j)Since November 1997 he has maintained a bank account in Australia and has a bank account in Germany.
k)Mr Weldemichael has minimal assets in Germany and Australia.
l)Mr Weldemichael was eligible to apply for Australian citizenship from 6 October 2000. He has not applied because of his concerns that he will lose his refugee status in Germany and lose his eligibility for welfare payments in Germany while not being able to access income support in Australia.
In documents submitted when he claimed newstart allowance, the applicant stated … I arrived from Germany on the 28th May 1994 (T6) and … I first arrived in Australia on May 28th 1994 as a permanent resident on visa sub class 126 with a return airplane ticket (T7). However it was evident to the Tribunal that passport records (T20) showed that the applicant's passport was stamped for an arrival at Melbourne Airport on 25 November 1991. As the legislation imposing a newly arrived resident's waiting period for newstart allowance does not apply where a person has entered Australia prior to 1993 (see para 15 below), the Tribunal invited submissions from the parties about the effect of that arrival on 25 November 1991.
In submissions filed by the parties subsequently, the parties confirmed, as now set out in Background in these reasons, that the date of the applicant's first arrival in Australia was 1991.
CONSIDERATION OF ISSUES
In regard to the claim for newstart allowance s623A(1) of the Social Security Act 1991 (the Act) provides:
623A.(1) Subject to this section, a person who:
(a)has entered Australia on or after 1 January 1993; and
(b)has not been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks;
is subject to a newly arrived resident's waiting period.
623A.(2) Subsection (1) does not apply to a person who has a qualifying residence exemption for a newstart allowance.
623A.(3) Subsection (1) does not apply to a person:
(a)if, immediately before this section commenced, the person had held a valid designated temporary entry permit for a continuous period of at least 26 weeks; or
(b) if:
(i)immediately before this section commenced, the person has held a valid designated temporary entry permit for a continuous period (permit period) of less than 26 weeks; and
(ii)that permit was continued in force as a temporary visa by regulations made under the Migration Reform Act 1992; and
(iii)the period during which that permit continued to be in force as a temporary visa together with the permit period is at least 26 weeks.
…
623A.(5) Subsection (1) does not apply to a person if:
(a)the person is already subject to a newly arrived resident's waiting period; or
(b)the person has already served a newly arrived resident's waiting period; or
(c)the person:
(i)has previously entered Australia before 1 January 1993; and
(ii)held a permanent entry permit granted under the Migration Act 1958 as then in force, or a permanent visa, before the person's last departure from Australia.
It was not disputed by the parties that the applicant does not have a qualifying residence exemption as contemplated by subsection 623A(2) nor a valid designated temporary entry permit within subsection 623A(3). Both terms are defined in s7 of the Act. The Tribunal is satisfied that the applicant does not have either exemption.
As to whether subsection 623A(5) applies to the applicant, Mr Jarrett in his written submission filed on 22 February 2002 set out the following:
…
Mr Weldemichael entered Australia on a visitor's visa in 1991, in order to assess his prospects for settlement in Australia as a migrant. He returned to Germany and subsequently applied for a permanent skilled visa (Independent - sub-class 126), which was granted on January 4, 1994. He then re-entered Australia using this permanent visa on May 28, 1994. …
…
Attached to this submission are certified photocopies of the relevant pages from Mr Weldemichael's two German Convention Travel Documents. On the earlier document (marked 1), you will note Mr Weldemichael's Visitor Visa, issued on December 20, 1990. On the same page, you will note his initial entry date as being February 28, 1991, and his departure on March 23, 1991. In this same document, you will note Mr Weldemichael's Permanent Visa, issued on January 4, 1994, and a number of entry and exit stamps. On Mr Weidemichael's second German Convention Travel Document (marked 2), you will note Mr Weldemichael's Resident Return Visa (s/c 157), and on a separate page, an exit stamp showing October 11, 1999, which was Mr Weldemichael's last departure from Australia (as the holder of a permanent visa).
Section 623A(5)(c) is relevant to Mr Weldemichael's circumstances and it is submitted that Mr Weldemichael satisfies both s.623A(5)(c)(i) and (ii). S.623A(5)(c)(i) is clear in its meaning. Mr Weldemichael previously entered Australia before I January 1993, having come to Australia in 1991 as a visitor. S.623A(5)(c)(ii) is also clear in its meaning. When Mr Weldemichael last departed Australia on October 11, I 999, he held a permanent visa.
Ms King in her submission filed on 28 February 2002 submitted:
·The Respondent contends that … Mr Weldemichael does not satisfy subsection 623A(5)(c)(i) and therefore is not exempted from the requirement to serve a Newly Arrived Residents Waiting Period (NARWP) of 104 weeks pursuant to subsection 623A(i).
·The requirement under subsection 623A(5)(c)(i) is that the person must have previously entered Australia before I January 1993. (my highlighting) It is submitted that, while Mr Weldemichael physically entered Australia in 1991, he did not 'enter' Australia within the meaning of the word ascribed by the courts. In the decision of the Federal Court in Lee v Minister of Immigration Local Government and Ethnic Affairs 1992 28 ALD 222 Justice Einfeld at 227 held that 'such a narrow...interpretation (of the word 'enter') could not have been intended by the migration regulations.
·In Mr Lee's case he applied for a permanent visa in 1989 and was initially granted a Processing (Temporary) Entry Permit. He departed Australia soon after his arrival to attend a family funeral and re-entered some 2 months later. The Federal Court held that Mr Lee was already a "legal resident" when he re-entered Australia, because he held the requisite entry permit "subject only to completion of formalities" (at 226). Crucial to the Court's determination was that Mr Lee at the time he entered Australia, in 1989, was accepted by Australia as a permanent member of Australian society: "… Australia was his (Mr Lee's) home. All his goods and possessions would have been here. If he had one, his family would have been here...he had a serious employment position in this country. (Australia) was in effect his own or adopted country". (at 226-27)
·The Court in Lee's case was applying reg 35AA(1) under the Migration Act 1958. It is submitted, however, that its interpretation of the word, 'enter' and its variations, in terms of entry into a country which a person regards as home, and, indeed, is accepted as a permanent resident of Australian society at the time of entry, equally applies to the meaning of ss623A(5)(c)(i) of the Social Security Act 1991.
·It is submitted that the situation of Mr Lee in that case was the reverse of Mr Weldemichael's on entering Australia. By contrast, Mr Weldemichael was not accepted by Australia as a permanent member of Australian society at the time he entered Australia, in 1991, nor at that time did he regard Australia as home or intend to make it his home. Mr Weldemichael arrived in Australia in 1991 as a visitor. His intention at the time was to return to Germany, which he did after just one month. His home at the time was Germany: he had family and friends there, he maintained leased accommodation, he studied, worked and carried on his affairs as a person residing in that country. I refer to my submissions in the Respondent's Statement of Case, Mr Weldemichael's statements at T6 pp35-40 and T7 pp41-2 in the Tribunal documents and his other evidence before the Tribunal in support.
·It is resubmitted, that Mr Weldemichael did not in fact 'enter' Australia within the meaning of section 623A of the Act until 15 December 1999 (the Respondents Statement of Case refers).
·Consequently, the decisions of the Social Security Appeals Tribunal to impose a Newly Arrived Residents Waiting Period for 104 weeks, from 15 December 1999 until 12 December 2001 in respect of the Applicant's claims for Newstart allowance and a Low Income Health Care Card, are correct and should be affirmed.
The Tribunal has taken into account the submissions made by the parties in regard to the operation of subsections 623A(1) and 623A(5) of the Act. The Act itself provides no definition of the term entered. Many provisions in the Act (particularly those in s7 dealing with residence) adopt definitions used in the Migration Act 1958 (the Migration Act). The term enter is defined in s5 of the Migration Act in the following terms:
5(1) In this Act, unless the contrary intention appears:
enter includes re-enter.
enter Australia, in relation to a person, means enter the migration zone.
entered includes re-entered.

Migration zone is also defined in s5, which reads:

…
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations …

The Reader's Guide (the Guide) which provides an introduction to the Migration Regulations sets out that:
… Migration law establishes the legal principles which govern the lawful entry to and stay in Australia for non-citizens … The visa will allow the non-citizen to travel to, enter and remain in Australia for a prescribed period.

The Guide makes plain that both permanent and temporary visas (such as the one held by the applicant on arrival in Melbourne in 1991) allow entry to Australia, as that term is defined in the Migration Act.

In Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 122 ALR 453 the Full Federal Court (at 456) said of entry generally, in the context of migration:
… The definition contained in the Act of the word "enter" states only that it includes re-enter, which is not very helpful. Normally the word "enter" is appropriate to describe what happens when a person first comes within Australia. It is a word appropriate to describe what happens when a person, whether a citizen of Australia or a non-citizen, comes from outside Australia into Australia.
Lee vMinister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 222 does not support the proposition that Ms King suggests in her submission. In Lee's case the Court was considering whether Lee could take advantage of a particular amnesty that was only available if a person had entered Australia before a particular date. What the Court said about his first date of entry, namely that at the time he first arrived in Australia it was to take up residence in this country, merely comments on the particular facts before the Court. It is not a statement by the Court that there will only be entry where a person intends to take up residence.
The Explanatory Memorandum to the legislation which introduced newly arrived resident waiting periods into the Act (the Social Security Legislation Amendment Act (Nº 3) Act N° 230 of 1992) stated that:
…
New section 623A will provide that a person is subject to a waiting period if s/he enters Australia on or after 1 January 1993. The waiting period will not apply to those who enter Australia before 1 January 1993 or who were granted an entry permit before 18 August 1992.
The Minister for Social Security stated in the Second Reading Speech that:
… The new restriction will not apply to people granted permission to enter Australia before the announcement of this measure in the Budget on 18 August 1992 …
Neither the words of the Explanatory Memorandum nor those of the Second Reading Speech limits entry in the way now submitted by the respondent; that is to confine the term as used in s623A(5) of the Act to an entry where a person is … accepted by Australia as a permanent member of Australian society. If it were the intention that entered in s623A(5) was to have a restricted definition it would have been a simple matter for the Act to provide it. The word enter is not one that has a technical meaning. The Macquarie Dictionary defines it as meaning to come or go into. The Tribunal is satisfied that this is the way that the word is used in s623A(5).

The Tribunal therefore finds that the applicant previously entered Australia before 1993 as he entered on a valid visitor's visa in 1991 [s623A(5)(c)(i)]. It is not disputed that before his last departure from Australia he was a holder of a permanent entry permit [s623A(5)(c)(ii)]. As the applicant therefore falls within the exception provided in s623A(5) a newly arrived resident's waiting period should not have been applied to his claim for newstart allowance made on 3 November 2000.
For these reasons, the Tribunal sets aside the decision of the SSAT in regard to the claim for newstart allowance.
In regard to the claim for a health care card s5BA of the Health Insurance Act1973 (the Health Insurance Act) provided at the relevant time that:
5BA(1)     Subject to subsection (2), a person who enters Australia, on or after the commencement of this subsection, is subject to a newly arrived disadvantaged low income resident's waiting period.
(2)          Subsection (1) does not apply to a person who:
(a)has a qualifying disadvantaged low income residence exemption; or
(b)has already served a newly arrived disadvantaged low income resident's waiting period or a newly arrived resident's waiting period; or
(c)has been an Australian resident for a period of, or periods totalling, 104 weeks.
(3)       If a person is subject to a newly arrived disadvantaged low income resident's waiting period, the period starts on the day on which the person:
(a)first entered Australia; or
(b)becomes an Australian resident;
whichever day last occurs, and ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
(4)       For the purposes of sub-section (2), a person has a qualifying disadvantaged low income residence exemption if, and only if, the person:
(a)resides in Australia; and
(b)is:
(i)a refugee; or
(ii)a former refugee; or
(iii)a family member of the refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(iv)an exempt resident; or
(v)a former exempt resident; or
(vi)a family member of the exempt resident, or former exempt resident, at the time the exempt resident or former exempt resident arrived in Australia.
(5) Expressions used in this section have the same meanings as in the Social Security Act 1991.

That provision has since been repealed by the Social Security Legislation Amendment (Concession Cards) Act 2001, and equivalent provisions are now to be found in the Act, dealing with resident waiting periods for a variety of concession cards.

The newly arrived resident's waiting periods for health care cards were introduced into the Health Insurance Act in 1997 (by Act N° 5 of 1997). The provisions came into operation on 4 March 1997. As stated in s5BA(5) the provisions use terms defined in the Act.
The applicant submitted that he should not be subjected to the newly arrived resident's waiting period as this legislation was not in place when he first came to Australia. The respondent submitted that at the time of the claim for the health care card the applicant had not been resident in Australia for a total of 104 weeks. Ms King submitted that the factors to be considered in determining the question of residence were those set out in s7(2) and s7(3) of the Act.
Section 7 of the Act provides:
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.
7.(3)In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a)the nature of the accommodation used by the person in Australia; and
(b)the nature and extent of the family relationships the person has in Australia; and
(c)the nature and extent of the person's employment, business or financial ties with Australia; and
(d)the nature and extent of the person's assets located in Australia; and
(e)the frequency and duration of the person's travel outside Australia; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia.
The principles set out in s7(3) codify the criteria that have been looked at by the courts in deciding whether a person is a resident. They provide a guide to the decision-maker in determining a person's intention as to their place of residence (Re Clifopoulos and Secretary to the Department of Social Security (1995) 36 ALD 745). The Tribunal must decide the question at the time of a claim. In regard to the health care card, the claim was made on 6 December 2000.
In considering the provisions in s7(3) the Tribunal notes that the applicant's accommodation in Australia during the times that he was here in 1994 and 1997 was of a temporary and changing kind. He was living in hotels or motels and had accommodation at one time with the Salvation Army (T2 and T14). When he was in Germany during his repeated visits to that country (June 1994, June 1997, May 1998 and October 1999) he lived in a flat leased in his name. The applicant has no family in Australia but has a brother and sister in Germany who pay the rent on the flat. The applicant has few assets either in Australia or in Germany. He has few ties with either country of a business or financial kind. Although he has had some employment while in Germany he has found very little in Australia.
His frequent returns to Germany during the period 1994 to 1999 were to deal with a legal case there. As the Tribunal has previously noted, consideration must be given as to the purpose behind travel outside Australia. The applicant on each occasion of arrival prior to his last in December 1999 travelled on a return ticket from Germany.
Prior to December 1999 the applicant had been coming and going but spent considerably more time in Germany than he did in Australia. He spent nearly three and a half years in Germany between June 1994 and 1999. Looked at in retrospect, it can be seen that for some time the applicant has had the intention ultimately of making Australia his home. However it is only on his last return in December 1999 that the intention was fully carried out. It is at that time that he became a resident within the meaning of that term in the Act. For these reasons, the Tribunal finds that prior to December 1999 the applicant was not a resident of Australia.
Section 5AB of the Health Insurance Act at the time of the claim required that a person who enters Australia on or after the commencement of the subsection was to be subject to the waiting period. For the reasons set out above concerning the meaning of entry, the arrival on December 1999 was an entry to Australia. Unless exempted for any of the reasons provided in s5BA, the applicant had to wait 104 weeks after his arrival in December 1999, because of the effect of s5BA(3) which looks to the later of two dates, namely first entry to Australia or when the person first becomes a resident. For the reasons set out above, the Tribunal finds the date that the applicant became a resident was 15 December 1999. He therefore did not become eligible for the grant of a health care card until 14 December 2001.
For these reasons, the Tribunal affirms the decision that a newly arrived resident's waiting period had to be applied to the claim for a low income health care card made on December 2000. There was no exemption in the Health Insurance Act similar to that applying to the applicant's claim for newstart allowance.
DECISION
The Tribunal:
(a)sets aside the decision that a newly arrived resident's waiting period applied to the applicant's claim for newstart allowance; and
(b)affirms the decision that a newly arrived resident's waiting period applied to the applicant's claim for a low income health care card.
I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  8 November 2001, 14 February 2002
Date of Decision:  3 May 2002
Solicitor for the Applicant:           Mr P. Jarrett, Springvale Community Aid and Advice Bureau
Solicitor for the Respondent:        Nil — Ms E. King, Advocate with Centrelink