XNZT and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 704

XNZT and Secretary, Department of Social Services (Social security second review) [2025] ARTA 704 (10 June 2025)

Applicant/s:  XNZT

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/4040

Tribunal:Senior Member M Kennedy

Place:Adelaide

Date:10 June 2025

Decision:The decision to reject the claim of 11 September 2023 for a Low Income Health Care Card is affirmed.

Statement made on 10 June 2025 at 12:27pm

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999

Catchwords

Application for social services second review of a decision – Low Income Health Care Card rejection – Applicant not an Australian resident or special category visa holder – decision affirmed

Legislation
Social Security Act 1991
Migration Act 1958

Social Security (Specified Class of Persons in Australia in Specified Circumstances—Health Care Card) Declaration 2018

Statement of Reasons

1. Ms XNZT is a citizen of a country in South America. She entered Australia as the holder of a subclass 600 Visitor visa in February 2018.  In September 2018 Ms XNZT applied for a different kind of visa and was granted a subclass 010 (Bridging Visa A) while her substantive visa application was processed.  Ms XNZT has continued to hold the subclass 010 bridging A visa at all material times.

2. On 11 September 2023 Ms XNZT lodged a claim for a low income health care card (LIHCC). On 13 January 2024 Centrelink rejected her claim because she did not meet the qualification criteria, specifically the requirement that she be an ‘Australian resident’.

3. Following internal review, Ms XNZT applied to the Administrative Appeals Tribunal (AAT). The AAT affirmed Centrelink's decision on 17 June 2024. Ms XNZT applied for further review in the AAT the same day.

4. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.

5. Ms XNZT’s application is to be determined as a social services second review.

6. The hearing in the review proceeded on 5 June 2025.

7. Section 1061ZK of the Social Security Act 1991 (the Act) provides for the automatic qualification for a LIHCC in certain circumstances, generally speaking where a person is receiving a social security benefit or is a disabled child.  It is not applicable to Ms XNZT’s circumstances.

8. Section 1061ZO of the Act provides for qualification for a LIHCC in other circumstances. Relevantly, paragraph 1061ZO(2)(b) requires that the person be an Australian resident or a special category visa holder residing in Australia and be in Australia at the time the application is made.

9. Additionally, subsection 1061ZO(7) of the Act provides that a Minister, may, by legislative instrument, declare that a person who is included in a specified class of persons; and is, or has been, in Australia in specified circumstances; is (also) a person to whom section 1061ZO of the Act applies. The relevant declaration is the Social Security (Specified Class of Persons in Australia in Specified Circumstances—Health Care Card) Declaration 2018 (the Declaration)

10. As to the definition of Australian resident, subsection 7(2) of the Act provides that an Australian resident is a person who resides in Australia; and is an Australian citizen, the holder of a permanent visa, or a special category visa holder who is a protected SCV holder.

11. In her evidence Ms XNZT confirmed that she is not an Australian citizen and confirmed that she continues to hold the subclass 010 bridging visa A.  I have noted Ms XNZT's evidence about her circumstances in Australia generally, but it is not necessary to recount that information.  Ms XNZT’s relevant evidence about her migration status in Australia is corroborated by the documentary evidence in the tribunal papers.

12. I find that Ms XNZT is not an Australian citizen, and not the holder of a permanent visa. In this regard, I note that section 37 of the Migration Act 1958 provides that a bridging visa is a temporary visa. I further find that Ms XNZT is not a special category visa holder, as special category visas (subclass 444) are granted only to New Zealand nationals on arrival in Australia.

13. It follows therefore that Ms XNZT does not meet the statutory definition of an Australian resident and cannot satisfy the applicable requirements in subsection 1061ZO(2) in that regard, and in particular the requirement at subparagraph 1061ZO(2)(b)(i) of the Act.

14. The provisions of the Declaration remain for consideration. In this regard the Declaration provides for certain classes of persons to nonetheless satisfy section 1061ZO, even if they would not otherwise satisfy the requirements of that section.

15. The Declaration lists alternative criteria to satisfy section 1061ZO of the Act, but the provisions are applicable only to persons who hold one of a number of identified visa subclasses. Subclass 010 Bridging visa A is not amongst the identified visa subclasses.

16. It follows therefore that Ms XNZT cannot qualify for an LIHCC via the provisions of the Declaration.

17. In her evidence and arguments before the Tribunal Ms XNZT provided me with information about her personal circumstances including the need for her to provide some level of health care for her child. Ms XNZT queried whether different arrangements applied where a child's interests were involved. Ms XNZT has also lodged material demonstrating she has been in correspondence with Members of Parliament regarding her circumstances. I have noted Ms XNZT has raised various matters in her correspondence, but I have been unable to identify any matters that engage with the fundamental barrier she faces in relation to her application for a LIHCC being successful; namely, that she is not residentially qualified for the LIHCC.

18. While I have considered Ms XNZT’s circumstances and the arguments she had advanced I am bound to apply the qualification criteria for the LIHCC as provided for in the Act and the Declaration. As Ms XNZT is not an Australian resident or special category visa holder, nor a person who satisfies the alternative provisions made by the Declaration, she does not meet the qualification criteria for a LIHCC.

19. Ms XNZT's application for a LIHCC was therefore correctly rejected.

    DECISION

    The decision under review is affirmed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Kennedy

............................[SGND]................................

Feng J, Associate

Dated:   10 June 2025

Date of hearing:	5 June 2025
Applicant:	Self-represented
Solicitor for the Respondent:	Mr L Van Mai