Ye and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 800
•15 November 2012
[2012] AATA 800
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3560
Re
AI MEI YE
APPLICANT
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 15 November 2012 Place Brisbane The Tribunal affirms the decision under review.
..........................[sgd]....................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Parenting payment – Qualifying residence requirements – Permanent visa holder – Minimum 104 week’s residence – Qualifying residence exemptions – Newly arrived residents waiting period – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 500, 500D
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
15 November 2012
INTRODUCTION
On 9 May 2012, Ms Ai Mei Ye (Ms Ye) was deemed to have made a claim for parenting payment. Her claim was rejected by Centrelink on the ground that she did not meet the residency requirements for parenting payment. I have to determine whether Ms Ye qualified for parenting payment when she made her claim for that benefit.
Ms Ye was represented by Mr Guan as she was not able to attend the hearing of her application. I decided that her presence was not required as there was no dispute about the facts in this case.
BACKGROUND
Ms Ye has resided in Australia with her husband, Mr Guan, since 2004. The couple have two children who are under the age of 6 years. On 7 May 2010, Ms Ye and her husband were granted permanent residency status. On 26 January 2012, Ms Ye and Mr Guan became Australian citizens.
On 9 May 2012, Ms Ye contacted Centrelink and made a claim for parenting payment. On 22 May 2012, Centrelink made a decision that Ms Ye was not entitled to receive parenting payment because she did not meet the residency requirements for this payment. On 25 June 2012, a Centrelink authorised review officer affirmed this decision. On 31 July 2012, the Social Security Appeals Tribunal affirmed the decision.
QUALIFICATIONS FOR PARENTING PAYMENT
A person is qualified for parenting payment if he or she satisfies the requirements of sub 500(1) of the Social Security Act 1991 (Cth) ("the Act"), which provides:
A person is qualified for parenting payment if:
(a) the person has at least one PP child (see sections 500D and 500F to 500H); and
(b) the person is an Australian resident;
(c) in a case where the person is not a member of a couple and does not have at least one PP child who has not turned 6 -- the person meets any participation requirements that apply to the person under section 500A; and
(ca) in a case where the person is in a class of persons specified by legislative instrument under subsection (2) -- the person meets any participation requirements that apply to the person under section 500A; and
(d) at least one of the following conditions is satisfied:
(i) the person is not a member of a couple and the person was not a lone parent at the start of the person's current period as an Australian resident;
(ii) the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;
(iii) the person has a qualifying residence exemption for parenting payment.
It is not in issue that subs 500(1)(c), and 500(1)(ca) of the Act are not relevant to this application.
PP Child
There are two children of the marriage who are under the age of 6 years. These children come within the definition of PP child as defined by sub 500D(1) of the Act as follows:
A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is a member of a couple; and
(c) the child has not turned 6; and
(d) the person is the principal carer of the child.
There is no issue that the children are PP children as defined in sub 500D(1) of the Act. Ms Ye therefore satisfies sub 500(1)(a) of the Act by having at least one PP child.
I should add that Ms Ye has another child but that child is over the age of 16 years and therefore does not come within the definition of a PP child as defined by sub 500D(3) of the Act.
Australian resident
The term Australian resident is defined by sub 7(2) of the Act:
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.
Since 13 March 2004, Ms Ye has resided in Australia. On behalf of Ms Ye, it was submitted that she became a permanent resident on 7 May 2010. The material before me shows that Ms Ye become the holder of a permanent visa (subclass 151) on 7 May 2010. I find that on 7 May 2010, Ms Ye became an "Australian resident" within the meaning of sub 7(2) of the Act and therefore satisfies sub 500(1)(b) of the Act.
Member of a couple
I must now consider the application of sub 500(1)(d)(i) of the Act. The material before me discloses that Ms Ye and Mr Guan are married and reside together. Mr Guan has completed the “Parenting Payment Partnered – Partner's Details” form (Form SC278.1005) in which confirms that Ms Ye is her partner. I therefore find that both Ms Ye and Mr Guan are members of a couple. I am satisfied that the condition in sub 500(1)(d)(i) of the Act has no relevance to this application.
Residence requirement
What is in issue is whether Ms Ye satisfies the condition in sub 500(1)(d)(ii) of the Act, which provides:
the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;
Mr Guan pointed out that Ms Ye has continuously resided in Australia from the moment she arrived, on 13 March 2004, until she was granted permanent residence on 7 May 2010. However, in order to satisfy the condition in sub 500(1)(d)(ii) of the Act, Ms Ye must have resided in Australia for a period of, or periods adding up to, at least 104 weeks at the time of her claim while she was an “Australian resident” as defined by the Act. On 7 May 2010, Ms Ye became an “Australian resident” within the meaning of sub 7(2) of the Act. This was the first day she became the “holder of a permanent visa” and was therefore able to satisfy at least one of the categories in sub 7(2)(b) of the Act. I must therefore consider the period of time that she has resided in Australia since that date until the date of her claim.
I have considered the period of time that the applicant has resided in Australia, which is from 7 May 2010 (when her permanent residency started) until the date of her claim for parenting payment, 9 May 2012. However, the material before me discloses that during this period, Ms Ye was, at times, absent from Australia, Thus, the amount of weeks she resided in Australia are to be determined from the periods of actual residence as follows:
(a)Between 7 May 2010 and 14 September 2010 (18 weeks, 5 days);
(b)Between 20 October 2010 to 22 August 2011 (43 weeks, 6 days);
(c)Between 21 November 2011 to 9 May 2012 (24 weeks, 2 days).
Mr Guan agreed that Ms Ye was otherwise absent from Australia.
I find after a review of the material before me that Ms Ye did not reside in Australia for a continuous period of least 104 weeks as required by sub 500(1)(d)(ii) of the Act. At the time of her claim for parenting payment she was an Australian resident, as defined by the Act, for some 86 weeks and 6 days only. There is no provision which confers any discretion upon me to waive the period of 104 weeks.
Qualifying residence exemption
For the sake of completeness I must now consider whether Ms Ye has a “qualifying residence exemption” for parenting payment as provided by sub 500(1)(d)(iii) of the Act.
The term “qualifying residence exemption” is defined by two provisions of the Act. Subsections 7(6) and 7(6AA) of the Act contains the following definitions of a “qualifying residence exemption”:
(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.
(6AA) A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card if, and only if, the person:
(a) was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(b) holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.
The material before me does not disclose that Ms Ye satisfies either of the qualifying residence exemptions in subs 7(6) or 7(6AA) of the Act. I therefore find that Ms Ye does not satisfy sub 500(1)(d)(iii) of the Act. In his translated submission, Mr Guan contended that a refugee qualifies for parenting payment in circumstances when an Australian citizen does not satisfy the residence requirement in sub 500(1)(d)(ii) of the Act. This is really a complaint against the policy of the legislation that must be administered by the Secretary.
Newly arrived resident's waiting period
Mr Guan stated that there was some confusion about whether the newly arrived resident’s waiting period was relevant to a claim for parenting payment. Certainly this was regarded as an issue before the Social Security Appeals Tribunal.
Mr Guan stated that on 27 January 2012 he had just moved from Sydney and that he had no employment and “went to get help from Centrelink”. He was then advised that Ms Ye might be eligible for parenting payment. On 14 February 2012, Ms Ye made an enquiry about parenting payment and a Centrelink officer made the following file note (see Exhibit G):
New claim is pending: CAO Assessment of Private Company and waiting on response from International Services to determine whether the NARWP can be waived for the customer, as her claim is currently rejecting [sic] on the grounds of "Residency Less Than 104 weeks”.
It would appear that Ms Ye would then have been advised that she did not satisfy the residency requirement of 104 weeks and that advice would be sought on whether the newly arrived resident's waiting period could be waived. However, a review of the file notes does not contain any record of Ms Ye being advised that the newly arrived resident's waiting period would be waived in her case. What appears to be the case is that the Centrelink officers had quite properly explored what benefits may be available to Ms Ye.
I am satisfied that the newly arrived resident's waiting period has no relevance to a claim for parenting payment. On 25 June 2006, the authorised review officer gave a ruling that "PP (parenting payment) is subject to a qualifying residence period rather than a Newly Arrived Resident's Waiting Period (NARWP)" (see Exhibit A, T-document 8, p. 45). I agree with that conclusion as the newly arrived resident's waiting period is not a condition which is prescribed under sub 500(1) of the Act.
DECISION
I affirm the decision under review.
I certify that the preceding 24 (twenty four) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
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Associate
Dated 15 November 2012
Date of hearing 8 November 2012 Applicant In person Advocate for the Applicant Mr Feng Hui Guan Interpreter for the Applicant Ms Zhang Solicitors for the Respondent Ms Brooke Carruthers
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