Yaacoub and Secretary, Department of Social Services (Social services second review)

[2018] AATA 4279

Yaacoub and Secretary, Department of Social Services (Social services second review) [2018] AATA 4279 (19 November 2018)

Division:GENERAL DIVISION

File Number(s):      2017/5723

Re:Najat Yaacoub

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:19 November 2018

Place:Sydney

The decision under review is affirmed.

.....................[sgd]...............................................

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – special benefit – qualification for payment – newly arrived resident’s waiting period – whether substantial change in circumstances beyond the applicant’s control after they first entered Australia – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 729, 739A

REASONS FOR DECISION

Senior Member A Poljak

19 November 2018

1. The applicant, Ms Yaacoub, first arrived in Australia from Lebanon with her two children on 4 April 2013, on a Subclass 115 (Remaining Relative) visa (“Subclass 115 visa”). A Subclass 115 visa allows someone outside of Australia, whose only near relatives are living in Australia, to live in Australia as a permanent resident. Eligibility criteria for the Subclass 115 visa are:

   (a)the person’s (and the person’s partners) relatives in Australia must be their only near relatives; and

   (b)the person must have someone who will provide an assurance of support.

2. In this case, the applicant’s brother provided the assurance of support, commencing on 4 April 2013. The applicant and her children lived with him. On 4 July 2013, the applicant and her children returned to Lebanon as a result of a breakdown of the applicant’s relationship with her brother.

3. Some years later, on 17 February 2017, the applicant returned to Australia. Her brother’s assurance of support had expired in April 2015 and as such he had no legal obligation to support the applicant upon her return in 2017. The applicant’s children came to Australia in late 2017. She and her children lived with a friend, Ms Harb, or with Ms Harb’s friends or family.

4. On 27 March 2017, the applicant made a claim to the Department of Human Services (“Centrelink”) for special benefit on the basis that she was in financial hardship and had no means of support. Centrelink rejected the applicant’s claim on the basis that she was subject to a two-year newly arrived migrant waiting period and that there were no grounds to waive the waiting period because the applicant had not had a significant unforeseeable change in her circumstances since arriving in Australia. This decision was reviewed and affirmed by an authorised review officer (“ARO”) on 9 May 2017.

5. On 18 August 2017, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) affirmed the decision of the ARO. This is the decision under review.

6. The issue to be determined in these proceedings is whether the applicant is subject to a newly arrived migrant waiting period before she can be paid special benefit.

   Relevant Legislative Provisions

7. Special benefit is a payment made under part 2.15 of the Social Security Act 1991 (Cth) (“the Act”). Section 729 of the Act sets out the qualification criteria. Relevantly, section 729(2) of the Act provides:

   (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…

8. Section 739A of the Act provides that the payment of special benefit to people holding certain visa types is subject to a newly arrived resident’s waiting period. In the applicant’s case, the waiting period is completed when she has been in Australia for a period of, or periods totalling, 104 weeks after the day she became a holder of the Subclass 115 visa.

9. Subsection 739A(7) of the Act provides that the newly arrived resident’s waiting period does not apply, if in the Secretary’s opinion, “the person has suffered a substantial change in circumstances beyond the person’s control after the person first entered Australia”. The power to waive the waiting period is discretionary.

   Did the applicant suffer a substantial change in circumstances and if so, was that change beyond the applicant’s control?

10. I accept that there was a temporary change in the applicant’s welfare for the worse, for a short period of time, after her arrival in Australia on 17 February 2017. I also accept that this was a detrimental change to her welfare compared to her circumstances from 4 April 2013 to 4 July 2013.  

11. The applicant claims that she returned to Australia in 2017 because her visa was about to expire and it was a bad situation for her and her children in Lebanon due to political and economic problems. She wanted to start a new life in Australia and be closer to her brother. In February 2017, the applicant returned to Australia alone and her children stayed behind in Lebanon. At hearing, the applicant explained how upon her arrival in Australia, her brother collected her from the airport and took her to his friend’s house where the applicant stayed in the garage. The applicant accepted at hearing that the garage was “similar to accommodation” as it had a small kitchenette (with a stovetop to cook food), a small bathroom with a toilet and a “very thin mat” on the floor for sleeping. She said the owners of the garage were very sympathetic and sometimes gave her food.

12. The applicant’s circumstances changed for the better when she met Ms Josephine Harb. The applicant recounts the change in her circumstances in her statutory declaration dated 9 February 2018 at paragraphs [18] and [19]:

    “I moved out of the garage and since then have mostly resided at Josephine’s house. Josephine has friends and family who also give me a place to stay. I sometimes stay at Josephine’s nephew’s place and very rarely I stay with her friend Sophie.

    Josephine’s family give me food, shelter, medicine, clothing and take me to church”.

13. The evidence of Ms Harb is consistent with the evidence of the applicant. In her statutory declaration dated 9 February 2018, she explains how she met the applicant at a chemist in Merrylands. She explains how the applicant was crying and said she was upset because “her brother was not supporting her, she was new to the country and she was all alone”. Ms Harb recounts how she took the applicant to her house where she stayed for the first three months and since that time the applicant has stayed at Ms Harb’s friend’s house and also at her nephew’s house. She explains that she took the applicant to get food, clothing and medicine and also took the applicant to church and to Centrelink. Sometime in 2017, Ms Harb notes that the applicant moved into her nephew’s garage but the majority of the time she resided with her. In her statutory declaration Ms Harb reiterates:

    “Since February 2017 [the applicant] has been with me, my friends and family. We support her. We buy her food, medicine, provide her with accommodation, money for public transport and clothing.

    In December 2017 [the applicant’s] children moved to Australia. [The applicant] and her two children now reside with myself, my friends or family”.

14. The applicant did not have a key to any of the residences she stayed at however, she was able to come and go as she pleased and could do her own washing. Ms Harb advised that she would drive the applicant if she wanted to go somewhere, such as to the shops, sightseeing and to church. The available evidence strongly demonstrates that the applicant was never without food, shelter, bedding, clothing and medication.

15. At hearing, the applicant explained that her two children joined her in Australia in late 2017. She said that they are now adults and are aged 18 and 22 years old. She said that since their arrival in Australia they have stayed with her and they move around between Ms Harb’s house, her relatives and her friends’ houses. She said that her children were not yet working (at the time of hearing) and were supported by Ms Harb, Ms Harb’s relatives and the church.

16. Having carefully considered all of the available evidence, I’m not satisfied that the applicant suffered a substantial change in her circumstances between 17 February 2017 and the date of hearing. Any immediate detrimental change to the applicant’s circumstances, shortly after arriving in Australia, was not substantial and in any event was temporary. The applicant was provided accommodation immediately upon her arrival in Australia, albeit basic, in a converted garage. After a relatively short period of time, the applicant has since been provided care and support by Ms Harb and from her family and friends. Ms Harb took the applicant in and as the respondent aptly described, Ms Harb was the applicant’s saviour. It is also plain that the applicant felt sufficiently comfortable about her circumstances to bring her children to Australia in late 2017 to live with her.

17. For completeness, I also note that if there was a substantial change in the applicant’s circumstances, which I have already found there was not, it was not beyond her control. It is plain from the applicant’s evidence, that she had no plans on how to support herself on her arrival in Australia. She was well aware that her brother’s support was no longer available to her and that she could possibly have trouble with finding work. At hearing she said that she had discussions with her brother before returning to Australia. She said that even though her brother told her to return to Australia because of her impending visa expiry, he did tell her that if she returned, she could not rely on him because he was struggling to support his family. The applicant confirmed that she was “certainly aware” that she could not rely on her brother to support her when she arrived in Australia. The applicant further explained that she wanted to rely on herself but had health and psychological issues which impacted on her ability to find work. She however confirmed that she knew of these health issues prior to returning to Australia and explained that she even had trouble in Lebanon finding permanent work. She says she really wanted to rely on herself when she returned to Australia but was “expecting the mercy of God”.

18. Having regard to the applicant’s evidence, it is plain that the applicant knew of the issues she faced upon her return to Australia. She accepts that she knew her brother was not going to support her and it is entirely foreseeable that she would have some difficulty finding work in Australia. It was well within her control to make better enquiries and ensure her security before returning to Australia.

    Decision

19. For all of the above reasons, I find that the applicant does not satisfy section 739A(7) of the Act and therefore the newly arrived resident’s waiting period should not be waived. The discretion to grant special benefit under section 729 of the Act should not be exercised in favour of the applicant.

20. The decision under review is affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 19 November 2018

Date(s) of hearing:	1 March 2018
Solicitors for the Applicant:	D Shaw, Welfare Rights Centre
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services