Wijeyatilake and Secretary, Department of Family and Community Se Rvices
[2003] AATA 703
•25 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 703
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/240
GENERAL ADMINISTRATIVE DIVISION )
Re ANTOINETTE DOROTHY WIJEYATILAKE Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date25 July 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. ....................(Sgd).....................
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – qualification for benefits and entitlements – age pension – special benefit – residential qualification – use of Guide to Social Security Law
Migration Act 1958 s 32
Social Security Act 1991 ss 7, 43, 729
Social Security (Administration) Act 1999 s 30
Social Security (International Agreements) Act 1999 Schedule 3Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259REASONS FOR DECISION
25 July 2003 Mr RG Kenny, Member Background
1. On 23 September 2002, Antoinette Wijeyatilake (“the applicant”) lodged a claim for special benefit which is payable under the Social Security Act 1991 (“the Act”). On 18 October 2002, a delegate of Centrelink rejected her claim and that decision was affirmed by an Authorised Review Officer on 5 February 2003 and, in turn, by the Social Security Appeals Tribunal on 7 March 2003.
2. On 14 November 2002, the applicant lodged a claim for age pension which is also payable under the Act and this claim was rejected, on 13 December 2002, by a Centrelink delegate. Again, this was affirmed by an Authorised Review Officer on 16 January 2003 and also by the Social Security Appeals Tribunal on 7 March 2003.
3. The applicant sought review of those decisions by the Administrative Appeals Tribunal (“the Tribunal”) on 21 March 2003.
Appearances
4. The applicant attended the hearing but was not represented. Mr J Howard of the Service Recovery Team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (“the respondent”).
5. At the hearing, the following material was taken into evidence:
§exhibit 1 Documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents (T1-T42));
§exhibit 2 a letter, dated 21 March 2003, from the applicant;
§exhibit 3 an extract from the applicant’s passport; and
§exhibit 4 a Fact Sheet entitled: “New Zealanders in Australia” published by the Department of Immigration and Multicultural and Indigenous Affairs.
Issues and Legislation
6. As noted above, both special benefit and age pension are payable in accordance with the terms of the Act and, in each case, one of the qualifying criteria relates to a residential connection with Australia.
7. In relation to the special benefit, the relevant provisions read:
“7(1) In this Act, unless the contrary intention appears:
‘Australian resident’ has the meaning given by subsection (2);
‘designated temporary entry permit’ means:
(a)an old PRC (temporary) entry permit held by the partner or a dependent child (if any) of a citizen of the People's Republic of China if that citizen holds an old PRC (temporary) entry permit; or
(b)a new PRC (temporary) entry permit held by the partner or a dependent child (if any) of a citizen of the People's Republic of China if that citizen holds:
(i) an old PRC (temporary) entry permit; or
(ii) a new PRC (temporary) entry permit;
'former refugee' means a person who was a refugee but does not include a person who ceased to be a refugee because his or her visa or entry permit (as the case may be) was cancelled;
‘holder’, in relation to a visa, has the same meaning as in the Migration Act 1958;
‘new PRC (temporary) entry permit’ means an entry permit within class 437 of Division 2.6—Group 2.6 in Part 2 of Schedule 1 to the Migration (1993) Regulations as in force before 1 September 1994;
‘old PRC (temporary) entry permit’ means a PRC (temporary) entry permit within the meaning of the Migration (1989) Regulations as in force before 1 February 1993;
‘permanent visa’, ‘special category visa’, ‘temporary visa’ and ‘visa’ have the same meaning as in the Migration Act 1958;
‘protected SCV holder’ has the meaning given by subsections (2A), (2B), (2C) and (2D).
‘qualifying Australian residence’ has the meaning given by subsection (5);
'qualifying residence exemption' has the meaning given in subsections (6) and (6AA).
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(2A) A person is a protected SCV holder if:
(a)the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or
(b)the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day.
7(2B) A person is a protected SCV holder if the person:
(a) was residing in Australia on 26 February 2001; and
(b) was temporarily absent from Australia on 26 February 2001; and
(c)was a special category visa holder immediately before the beginning of the temporary absence; and
(d) was receiving a social security payment on 26 February 2001; and
(e) returned to Australia before the later of the following:
(i) the end of the period of 26 weeks beginning on 26 February 2001;
(ii)if the Secretary extended the person’s portability period for the payment under section 1218C—the end of the extended period.
…
729(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.
729(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
(a) no social security pension is payable to the person during the period; and
(b) no other social security benefit is payable to the person for the period; and
(bb)the person is not disqualified for a benefit PP (partnered) for the period solely because of the operation of section 500C (unemployment due to industrial action); and
(c)the person is not disqualified for a newstart allowance for the period because of the operation of one or more of the following:
(ii) section 596 (unemployment due to industrial action);
(iii) section 597 (move to area of lower employment prospects); and
(d)if the person is qualified for a newstart allowance but the allowance is not payable to the person for the period—that result is not produced because of the operation of one or more of the following:
(i)section 625 (person failing to enter into a Newstart Activity Agreement);
(ia)section 626 (person failing to comply with a Newstart Activity Agreement);
(ii) section 624 (person failing to satisfy activity test);
(iii) section 628 (unemployment due to voluntary act);
(iv) section 629 (unemployment due to misconduct);
(v) section 630 (refusal of job offer);
(va) section 630AA (failing to provide information);
(vi) section 631 (person failing to comply with notification requirement);
(viii) section 633 (seasonal workers);
(ix) section 634 (move to area of lower employment prospects); and'
(da)the person is not disqualified for a youth allowance for the period because of the operation of:
(ii)section 544 (requirements relating to Youth Allowance Activity Agreements); and
(db)the person is not disqualified for an austudy payment for the period because the person fails to satisfy the activity test within the meaning of section 569; and
(dc)youth allowance is not payable to the person for the period and that result is not because of the operation of:
(i) section 550 (application of activity test non-payment period); or
(ii) section 553B (move to an area of lower employment prospects); or
(iii)section 565C (failure to comply with section 561C, 1304 or 1305 notices); and
(dd)austudy payment is not payable to the person for the period and that result is not because of the operation of:
(i) section 576 (application of activity test non-payment period); or
(ii)section 588D (non-compliance with section 586C notification obligations); and
(e)the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and
(f) the person:
(i) is an Australian resident; or
(v)becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph.
729(3) The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period.”
8. Also of relevance in respect of the special benefit is section 30 of the Social Security (Administration Act) 1999 (“the Administration Act”) which reads:
“30. A claim for special benefit may only be made by a person who:
(a)is in Australia; and
(b)satisfies one of the following subparagraphs:
(i)the person is an Australian resident;
(ii)the person has a qualifying residence exemption for special benefit;
(iii)the person holds a visa determined by the Minister to be a visa to which this subparagraph applies.”
9. In relation to the applicant’s visa, section 32 of the Migration Act 1958 reads:
“Special category visas
(1) There is a class of temporary visas to be known as special category visas.
(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a)a non-citizen:
(i) who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or
(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
(c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.”
10. In relation to age pension, the relevant provisions of the Act are:
“7(5) A person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) 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.
7(6) A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement, a seniors health card or a health care card if, and only if, the person:
(a) resides in Australia; and
(b) is either:
(i) a refugee; or
(ii) a former refugee.
7(6B) A person is a refugee for the purposes of this section if the person:
(a)is taken, under the Migration Reform (Transitional Provisions) Regulations, to be the holder of a transitional (permanent) visa because the person was, immediately before 1 September 1994, the holder of:
(i)a visa or entry permit that fell within Division 1.3-Group 1.3 (Permanent resident (refugee and humanitarian) (offshore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(ii)a visa or entry permit that fell within Division 1.5-Group 1.5 (Permanent resident (refugee and humanitarian) (on-shore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(b) was, immediately before 1 February 1993, the holder of a visa or entry permit of a class prescribed under the Migration Regulations as then in force that corresponds to a visa or entry permit referred to in subparagraph (a)(i) or (ii); or
(c) is the holder of:
(i) a permanent protection visa; or
(ii)a permanent visa of a class referred to in the Table at the end of this subsection; or
(iii)a permanent visa of a class referred to in the declaration of the Minister under subsection 25(1) that is in force.
TABLE OF CLASSES OF PERMANENT VISAS GIVING REFUGEE STATUS AND QUALIFYING RESIDENCE EXEMPTION Item No. Class description Relevant item in Schedule 1 to Migration Regulations 1. Burmese in Burma (Special Assistance) (Class AB) 1102 2. Burmese in Thailand (Special Assistance) (Class AC) 1103 3. Cambodian (Special Assistance) (Class AE) 1105 4. Camp Clearance (Migrant) (Class AF) 1106 5. Citizens of the Former Yugoslavia (Special Assistance) (Class AI) 1109 6. East Timorese in Portugal, Macau and Mozambique (Special Assistance) (Class AM) 1113 7. Minorities of Former USSR (Special Assistance) (Class AV) 1122 8. Refugee and Humanitarian (Migrant) (Class BA) 1127 8A. Sri Lankan (Special Assistance) (Class BF) 1129A 9. Sudanese (Special Assistance) (Class BD) 1130 10. Territorial Asylum (Residence) (Class BE) 1131
…
43(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
43(1A) A woman is qualified for an age pension if:
(a) the woman has reached pension age; and
(b) the woman’s partner has died; and
(c)both the woman and her partner were Australian residents when her partner died; and
(d)the woman was an Australian resident for a continuous period of at least 104 weeks immediately before the day she lodged the claim for the age pension.
…
43(3) Subsection (1) has effect subject to subsection 6(3) of the Social Security (International Agreements) Act 1999.”
11. In addition, Schedule 3 of the Social Security (International Agreements) Act 1999 is of relevance and it reads:
“PART A
AGREEMENT ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF NEW ZEALAND
The Government of Australia, and the Government of New Zealand, referred to in this Agreement as ‘the Parties’
WISHING to strengthen the existing friendly relations between the two countries, and
DESIRING to coordinate the operation of their respective social security systems and to enhance the equitable access by people covered by this Agreement to specified social security benefits provided for under the laws of both countries, and
WISHING to modify and replace the Agreement providing for matters relating to social security entered into at Wellington on 19 July 1994 as amended on 7 September 1995 and 2 July 1998,
HAVE agreed as follows:
PART I - DEFINITIONS AND SCOPE
ARTICLE 1 - Definitions
1. In this Agreement unless the context otherwise requires:
(a) ‘Australian resident’ has the meaning given to it under Article 5;
(b)‘benefit’, in relation to a Party, means the benefits as listed and defined in Article 2 and unless otherwise stated includes any amount, increase or supplement that is payable in addition to that benefit or in respect of a person who is eligible for that amount, increase or supplement under the social security law of that Party;
(c)‘competent authority’, in relation to New Zealand, means the Chief Executive of the Ministry of Social Policy and in relation to Australia, the Secretary of the Department of Family and Community Services;
(d)‘competent institution’, in relation to a Party, means the institution or institutions that are responsible for the administration of the social security law of that Party;
(e)‘CPI’ means the Consumer Price Index (All Groups) Australia wide, kept by the Australian Statistician and published from time to time by the Australian Bureau of Statistics, and in the event of the CPI being discontinued or abolished then such price index as the Australian Statistician substitutes for it;
(f)‘date of severe disablement’ means the date a person who applies for a disability support pension or invalid’s benefit was first assessed as meeting the criteria for a disability support pension or invalid’s benefit under this Agreement or, where evidence supports an earlier date, the competent institutions may agree on an earlier date;
(g)‘financial year’ means the period from 1 July of any year to 30 June of the next year;
(h)‘living alone’, in relation to New Zealand superannuation or veteran’s pension, has the meaning given to it under the social security law of New Zealand; and “not living alone” has a corresponding meaning;
(i)‘month’, in relation to New Zealand, means a calendar month, but where fractions of a month are to be aggregated, a month means 30 days;
(j) ‘New Zealand resident’ has the meaning given to it under Article 5;
(k) ‘permanent resident’ has the meaning given to it under Article 5;
(l) ‘severely disabled” means a person who:
(i)has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa) to work for at least the next 2 years; and
(bb)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(ii) is permanently blind;
(m)‘social security law’, in relation to a Party, means the laws of that Party specified in Article 2;
(n)‘territory’, in relation to New Zealand, means: New Zealand only and not the Cook Islands, Niue or Tokelau; and, in relation to Australia, means: Australia as defined in the social security law of Australia; and references to ‘New Zealand’, ‘Australia’ or the ‘territory’ of either shall be read accordingly;
(o) ‘third country residence’ has the meaning given to it under Article 5;
(p) ‘working age residence’ has the meaning given to it under Article 5;
(q) ‘year’ means 12 calendar months;
(r)‘1994 Agreement’ means the Agreement on Social Security between the Government of New Zealand and the Government of Australia done at Wellington on 19 July 1994, as amended on 7 September 1995 and 2 July 1998; and
(s)‘1994 Agreement benefit’ means a benefit defined in the 1994 Agreement in Article 2, paragraph 1, subparagraphs (a)(i), (ii), (iii), (iv), (v), (vi) and (vii).
2. In the application by a Party of this Agreement in relation to a person, any term not defined in this Article shall, unless the context otherwise requires, have the meaning assigned to it in the social security law of either Party.
ARTICLE 2 - Legislative Scope
1. Except as provided under paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, consolidates or replaces them:
(a)in relation to Australia: the Acts forming the social security law in so far as those Acts provide for, apply to or affect the following benefits:
(i) age pension;
(ii) disability support pension;
(iii)carer payment in respect of the partner of a person who is in receipt of a disability support pension; and
(b)in relation to New Zealand: the Social Security Act 1964 and the Social Welfare (Transitional Provisions) Act 1990 in so far as they provide for, apply to or affect the following benefits:
(i) New Zealand superannuation;
(ii) veteran’s pension; and
(iii) invalids benefit.
2. For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid’s benefit shall be limited to cases where:
(a) the person is severely disabled;
(b)the person was a resident of one of the Parties at the date of severe disablement; and
(c)the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.
ARTICLE 3 - Personal Scope
This Agreement shall apply to any person who:
(a) is or has been an Australian resident; or
(b) is or has been a New Zealand resident.
ARTICLE 4 - Equality of Treatment
Except as provided for in this Agreement, the persons to whom this Agreement applies shall be treated equally by each of the Parties in regards to rights and obligations that arise under the social security law of that Party or as a result of this Agreement.
ARTICLE 5 - Residence Definitions
1. ‘Australian resident’ has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. In deciding whether a person is residing in Australia, regard must be had to the following factors:
(a) the nature of the accommodation used by the person in Australia;
(b) the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person’s employment, business or financial ties with Australia;
(d) the nature and extent of the person’s assets located in Australia;
(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;
and ‘residence in Australia’ has a corresponding meaning.
2. ‘New Zealand resident’ means, in relation to New Zealand, a person who has or had New Zealand as their principal place of residence except where that person was unlawfully resident or present in New Zealand or lawfully resident or present in New Zealand only by virtue of:
(a) a visitor’s permit;
(b) a temporary work permit; or
(c)a permit to be in New Zealand for the purposes of study at a New Zealand school or university or other tertiary educational establishment;
and ‘residence in New Zealand’ has a corresponding meaning.
3. ‘permanent resident’ in relation to Australia means a person who is a citizen of Australia or who holds a permanent visa under the Migration Act 1958 of Australia.
4. ‘third country residence’ means a period of residence when a person was not either an Australian resident or a New Zealand resident.
5. ‘working age residence’ in relation to a person means a period of residence between the ages of 20 and 64 years inclusive (being a maximum of 45 years) but does not include any period deemed pursuant to Article 8 or Article 12 to be a period in which that person was an Australian resident or a New Zealand resident.”
12. The issue for the Tribunal in this case is whether or not the applicant meets the relevant residential requirements.
Applicant’s Evidence
13. The applicant gave the following evidence.
14. She was born in Sri Lanka on 13 June 1929 and has two daughters who still live in that country, two daughters who live in Australia and one son who lives in New Zealand. In 1996, she and her husband went to New Zealand to live with her son’s family but they returned to Sri Lanka in 2001 because her husband was ill. He passed away in Sri Lanka on 15 March 2002.
15. On 14 August 2002, the applicant came to Australia to live with one of her daughters in Brisbane. She did not need to obtain a visa because she was the holder of a New Zealand passport. She receives a small widow’s pension in Sri Lanka but this has been used by her to repay her daughter who paid her airfare to Australia. She has no income in Australia and has been living with her daughter and son-in-law but there have been significant difficulties in that household, in particular between herself and her son-in-law. The applicant also suffers from diabetes mellitus and this has had a significant effect upon her health especially in light of the fact that she has very little financial support.
Consideration
16. The facts in this matter are not in dispute and I am satisfied that the applicant is a citizen of New Zealand where she lived from 1996 until 2001. I am also satisfied that she arrived in Australia on 14 August 2002 and that she remains in Australia on the basis of her New Zealand passport (see T4).
17. The evidence before the Tribunal includes her initial claim documents for special benefit, lodged on 23 September 2002 (see T5), and for age pension, lodged on 14 November 2002 (see T15).
Special Benefit
18. A person qualifies for special benefit if the requirements of section 729 of the Act are met. Paragraph 729(2)(f) of the Act requires that the person be either an Australian resident or the holder of a visa that is in a class of visas determined by the Minister for the purposes of that provision.
19. Subsection 7(2) of the Act defines an Australian resident as being a person who resides in Australia and who meets one of the following criteria:
(i) an Australian citizen;
(ii) the holder of a permanent visa; or
(iii) a special category visa holder who was a protected SCV holder.
20. The applicant is not an Australian citizen. Also, the visa which the applicant holds is that which is provided under section 32 of the Migration Act 1958 and, pursuant to that provision, this is a class of temporary visas known as a special category visa. The question of whether the applicant is a special category visa holder depends upon the terms of subsections 7(2A) and 7(2B) of the Act. These provisions are set out above and the various alternatives in that provision involve being in Australia on 26 February 2001, being in Australia for twelve months during the two years prior to that date, residing in Australia on that date but being temporarily absent on that date or having commenced or recommenced residing in Australia within three months of that date. The evidence is that the applicant was not in Australia prior to 14 August 2002 and, therefore, none of those alternative requirements is met in this case.
21. The applicant is not an Australia resident in accordance with subsection 7(2) of the Act and, therefore, does not qualify for a special benefit under sub-paragraph 729(2)(f)(i) of the Act.
22. The alternative under paragraph 729(2)(f) of the Act is met if the applicant became the holder of a visa that is in a class of visas determined by the Minister for the purposes of paragraph 729(2)(f) of the Act. These are set out in paragraph 3.7.1.10 of the Guide to Social Security Law which is published by the respondent to provide assistance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86. In so far as relevant, paragraph 3.7.1.10 of the Guide reads:
“Holders of the following temporary visas MAY be paid SpB even though they are not Australian residents:
subclass 820 - spouse,
subclass 826 - interdependent,
subclass 309 - offshore spouse,
subclass 310 - offshore interdependent,
subclass 785 - temporary protection,
subclass 786 - humanitarian concerns,
subclass 447 - Secondary Movement (Offshore Entry), and
subclass 451 - Secondary Movement Relocation.”
23. I am satisfied, after noting the relevant entries on the applicant’s passport (see T4-38 and exhibit 3), that the applicant has not become the holder of any of those forms of visa. This means that she does not meet the alternative qualifying criteria under sub-paragraph 729(2)(f)(v) of the Act for special benefit. That is consistent with the terms of the Fact Sheet entitled ”New Zealanders in Australia” published by the Department of Immigration and Multicultural and Indigenous Affairs (exhibit 4) which advises that holders of New Zealand passports have that document stamped on arrival in Australia and are, thereby, automatically considered to have received a special category visa but without an allocation of any of the identity numbers set out above.
24. Quite apart from the matter of whether the applicant meets the qualifying criteria for special benefit, there is also a residential requirement for any person who seeks to make a claim for special benefit. This is provided for in section 30 of the Administration Act which is set out above. It requires that the person who makes the claim for special benefit must be in Australia and also satisfy one of the following requirements:
(i) the person is an Australian resident;
(ii) the person has a qualifying residence exemption for special benefit;
(iii)the person holds a visa determined by the Minister to be a visa to which the provision applies.
25. I have already determined that the applicant is not an Australian resident. Further, the Act does not provide for qualifying residence exemptions for special benefit and the Minister has not determined any classes of visa for the purposes of that provision.
Age Pension
26. The qualifying criteria for the age pension are set out in section 43 of the Act which is set out above. This provision sets out four alternative means by which qualification may arise.
27. The first of these is for the person to have a ten year qualifying Australian residence. Pursuant to subsection 7(5) of the Act, this will only be met if the person has, at any time, been an Australian resident for a continuous period of not less than ten years or for periods which aggregate that length of time. As the applicant arrived in Australia in August 2002, that requirement is not met.
28. A second means of being qualified is for the person to have a qualifying residence exemption for an age pension. This is dealt with in subsection 7(6) of the Act and, to satisfy that provision, there are various requirements including that the person be a refugee or a former refugee. A person will only be a refugee if the terms of subsection 7(6B) of the Act are met. This provision is set out above and I am satisfied that the applicant does not meet the terms of that provision.
29. A third means of being qualified for age pension is for the person to have been in recept of one of the nominated forms of benefit under the Act immediately before reaching the exemption age for age pension. I am satisfied that the applicant does not meet that requirement.
30. One further means of meeting the qualifying criteria for age pension is for the applicant to be within the terms of the Agreement on Social Security between Australia and New Zealand which is provided for in Schedule 3 of the Social Security (International Agreements) Act 1999.. This is set out above. That Agreement enables certain periods during which the applicant was resident in New Zealand to be taken into account when calculating her period of Australian residence. However, a constraint which applies to that recognition is that the person must have been between the age of 20 and 64 years. This is provided for in Article 5.5 and the applicant, on arrival in New Zealand in 1996, was outside of that age bracket.
31. As none of the factors in section 43 of the Act are met, this means that the applicant is not qualified to receive age pension.
Decision
32. The applicant does not meet the qualifying criteria for payment of either the special benefit or age pension under the Act. Therefore, the decision under review in respect of each of those forms of payment to her is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDates of Hearing 1 July 2003 and 18 July 2003
Date of Decision 25 July 2003
The Applicant appeared in person
For the Respondent Mr J Howard, Departmental Advocate
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