Zakia Popal and Secretary, Department of Social Services
[2014] AATA 253
[2014] AATA 253
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4553
Re
Zakia Popal
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 30 April 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
SOCIAL SECURITY – special benefit – spouse visa - ineligibility for social security benefits for 104 weeks after arrival – substantial change of circumstances beyond applicant’s control – limited discretion – criteria to be met on date of claim – decision under review affirmed.
Social Security Act 1991 sections 500(1), 500D(2), 500D(3), 500F(1), 500G(4)
Social Security (Administration) Act 1999 sections 13, 37, 152(4)
Social Security (Class of Visa – Qualifications for Special Benefit) Determination 2009
Social Security (Class of Visa – Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2011
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
The Guide to Social Security Law
REASONS FOR DECISION
Regina Perton, Member
30 April 2014
Zakia Popal arrived in Australia from Afghanistan on 13 June 2013 on a subclass 309 partner provisional visa. She had married an Australian citizen of Afghani background on 5 January 2011. She applied for a partner visa on 25 November 2012 which was granted on 14 May 2013.
On 25 June 2013 Ms Popal lodged a claim for special benefit. Centrelink, which administers special benefit on behalf of the respondent, rejected the claim on 25 June 2013 on the basis that Ms Popal did not meet the residence requirements for the payment nor any of the discretionary criteria.
On 15 July 2013 an authorised review officer of Centrelink (ARO) affirmed the decision to refuse the claim for special benefit. On 23 August 2013 the Social Security Appeals Tribunal (SSAT) also determined that Ms Popal was not eligible for the benefit. Ms Popal lodged an application with the Tribunal on 10 September 2013.
The issue before the Tribunal is whether Ms Popal qualified for special benefit on 25 June 2013.
Special benefit is available in limited circumstances to a person who does not qualify for any other income support payment (section 729 of the Social Security Act 1991 (the Act)). To qualify, an applicant must hold a visa of a class specified in the Social Security (Class of Visa - Qualifications for Special Benefit) Determination 2009. As the holder of a subclass 309 visa, Ms Popal qualifies for special benefit if she meets other specified criteria.
However, another barrier to a person qualifying for a special benefit is the newly arrived residents waiting period of two years before a person is eligible for such a payment (subsections 739A(1) and (2) of the Act). Ms Popal, as the holder of a subclass 309 visa, is subject to a two year waiting period. (Social Security (Class of Visas - Newly Arrived Resident's Waiting Period for Special Benefit) Determination 2011).
Section 739A(7) of the Act allows for the grant of a special benefit to a person who does not otherwise qualify for the payment because they are subject to the two year waiting period if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.
Guidance on applying section 739A(7) is set out in The Guide to Social Security Law (the Guide) issued by the Secretary. The guide is government policy and should be applied unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
MS POPAL’S PERSONAL CIRCUMSTANCES
Ms Popal, who is aged twenty, completed secondary school in Afghanistan. Following her marriage to Obadullah Popal (Mr Popal), it took some time for her to apply for and be granted a subclass 309 partner provisional visa. She travelled to Australia with her husband about a month after the visa was granted. He had been with her in Afghanistan for about four months before their joint travel to Australia. Ms Popal applied for special benefit 12 days after her arrival in Australia.
Since her arrival in Australia, Ms Popal and her husband have been staying with her husband’s brother, his wife and their five children aged 15, 14, 11, seven and two. This situation has proven to be difficult for all. The house comprises three bedrooms. Ms Popal and her husband sleep in the lounge. Their mattress is folded up each morning. Their clothes and other personal property are stored in the garage. The only place that the family can watch television or generally relax is usually the lounge so Ms Popal and her husband cannot go to bed until the others decide to go to sleep. There is little privacy for the young couple.
Ms Popal wishes to study and looks forward to working in Australia. She has no family in Australia and has found it difficult to cope emotionally in the environment that she and her husband have found themselves in due to their lack of funds. She expected that they would have their own home and independence rather than depending on her brother in law and his wife for accommodation.
Ms Popal said that there had been passport difficulties in Afghanistan. It had been an expensive exercise to apply for the visas, passports, health checks and the like. They had not expected it to take so long from Mr Popal’s arrival in Afghanistan for Ms Popal’s visa application to be approved.
Mr Popal was living in accommodation with other young men prior to leaving for Afghanistan but such a place is unsuitable for Ms Popal. Mr Popal did not attend the hearing but the Tribunal was told about his history and circumstances by his brother in whose house he and Ms Popal now live.
Prior to returning to Afghanistan in early 2013 Mr Popal was employed on a casual basis by a traffic control company. Ms Popal said that her husband had expected to return to the job with the company on his return to Australia in June 2013. However, when he approached the company, they said that there was no work available for him.
The Tribunal was provided with a letter dated 3 December 2013 signed by the Executive Director of Highway Traffic Control Pty Ltd (HTC). He stated:
Obaid Popal has worked for HTC traffic control in a casual capacity since July 2012.
Obaid has been away in Afghanistan for 6 Mths.
Obaid has returned to HTC and is working as a casual Traffic Controller working the occasional shift.
….
Details of Mr Popal’s earnings between July 2012 and December 2012 were provided, totalling less than $1,700 gross.
In her claim form for special benefit lodged on 25 June 2013, Ms Popal stated that the reason for the claim was that she had arrived in Australia on 13 June 2013 and her partner lost his job. She stated that they had no other income. In response to a prompt question asking that she explain why she believes she is in hardship and has no other means of support, Ms Popal responded that she and her partner does not have any relative to support them. She sought help from Centrelink to enable them to live. She indicated that they have no income to buy food, clothes, rent and other things. She needed special benefit for her future. Ms Popal stated that she and her husband were living with relatives for a short time.
Mr Popal’s brother described to the Tribunal the difficulties his family was experiencing in having his brother and Ms Popal stay with them since June 2013.
IS SPECIAL BENEFIT PAYABLE TO MS POPAL?
Prior to 1 January 2012 a member of a family unit of an Australian citizen, such as a spouse, was eligible for special benefit without a waiting period. However a change of legislation commencing on 1 January 2012 imposed a two year waiting period on spouses except where there had been a substantial change in circumstances beyond the applicant’s control after arrival in Australia. Ms Popal arrived in Australia about 18 months after the change of law.
As indicated earlier, Ms Popal is subject to a two year waiting period for a special benefit unless she has suffered a substantial change in circumstances beyond her control. The Guide sets out the considerations in determining if there has been such a change:
3.7.2.20 Substantial Change in Circumstances for SpB
Substantial change in circumstances
Some newly arrived persons may qualify for SpB during the NARWP, if they have experienced a substantial change in circumstances beyond their control and are able to satisfy the available funds test.
…
Factors to consider for newly arrived persons
Newly arrived persons are required to have attempted to obtain support from all possible alternative sources before being granted SpB. Before SpB can be paid, the delegate must be satisfied that:
• the change in circumstances is substantial and beyond the person's control, AND
• they are in financial hardship and are able to satisfy the available funds test, AND
• they have attempted to obtain a sufficient livelihood. For example, they have attempted to obtain support from their sponsor…, or have attempted to obtain employment, or if sponsored by a business, have attempted to work for their sponsor, AND
• their available funds or support options were depleted because of the change in circumstances.
Note: The person is not required to seek support from charity organisations.
The newly arrived person may be required to meet an activity test requirement.
Confirmation of changed circumstances
All newly arrived persons claiming to be in hardship due to substantially changed circumstances must substantiate their claim with documentation. If necessary, a referral should be obtained for a social worker assessment and assistance.
Example: A claim that a pre-arranged job fell through would have to be substantiated by evidence both that a job offer existed and that at the time it was withdrawn, the person was in Australia or for a permanent visa holder, they were irrevocably committed to travelling to Australia.
…
Available funds
A newly arrived person's available funds should NOT be taken to be depleted purely because they:
• cannot obtain or maintain employment, unless there is an exceptional delay…in recognition of qualifications in Australia (1.1.A.320), or
• have purchased a principal residence, or
• cannot establish a business, or
• are limited by the amount of funds they can bring with them when leaving their emigrating country.
…
Timing of the substantial change in circumstances
A change of circumstances is only relevant for the purposes of the SSAct if that change of circumstances occurs either:
• in the case of a permanent visa granted onshore - AFTER the claimant has become an Australian resident, or
• in the case of a permanent visa granted offshore - AFTER the claimant is 'irrevocably committed' to migrating to Australia, or
• in the case of a temporary visa holder - AFTER the claimant has arrived in Australia.
…
Example 4: A person is granted a temporary visa offshore and migrates to Australia to marry their Australian citizen partner, even though the partner had become unemployed (employer bankruptcy) BEFORE the visa holder left their country. Two weeks after arrival the visa holder applies for SpB due to financial hardship. As the substantial change occurred BEFORE the visa holder arrived in Australia, this is NOT considered a substantial change in circumstances beyond the person’s control under SSAct section 739A(7)and SpB would NOT be paid.
…
Partnered provisional visa (PPV) holders
A subclass 309, 310, 820 or 826 visa holder who lodges a claim on or after 1 January 2012 will be required to have experienced a substantial change in circumstances beyond their control to have the NARWP waived…. The onus is on the person to ensure that they have support in place for the duration of the NARWP. In the event that this support is to be provided by the partner, it is the responsibility of the visa holder to ensure that the partner is in a position to do so.
Changed circumstances that WOULD be considered substantial for the purposes of SpB
Many changes in circumstances apply equally to sponsored and non-sponsored residents and partnered provisional visa holders.
The following table provides examples of circumstances that WOULD be considered a substantial change for the purpose of qualification for SpB.
Change in circumstance
And...
A sponsor, partner or SpB claimant has a prolonged illness or injury,
is unable to work and/or there are significant medical costs being incurred by the SpB claimant or the partner.
Sponsor or partner loses job through no fault of their own,
the job was organised or commenced prior to the issue of the visa to the SpB claimant.
SpB claimant loses job through no fault of their own,
granted on shore the job commenced prior to grant of the visa and in the case of a temporary visa granted off shore the job was arranged prior to arrival in Australia.
Sponsor or partner dies,
the SpB claimant has no means of support.
Partner and SpB claimant separate,
the SpB claimant was the victim of domestic/family violence.
Child is born or family becomes responsible for a dependent child,
the child has a severe medical condition or a severe disability that incurs significant additional costs to the SpB claimant or partner.
Dependent child develops a severe medical condition, disability or sustains a serious injury,
the SpB claimant is unable to work and/or there are significant medical costs being incurred by the SpB claimant or the partner.
Sponsor or partner becomes a long term prisoner, or is confined long term to a hospital, psychiatric institution or nursing home,
the SpB claimant has no means of support.
Sponsor or partner has been notified as a missing person or has abandoned the SpB claimant,
the SpB claimant has no other means of support.
SpB claimant is the victim of substantiated domestic violence,
has no other means of support.
…
Changed circumstances that are NOT substantial for the purposes of SpB
The following situations would NOT be considered a substantial change in circumstances for the purpose of qualification for SpB - where no other extenuating circumstances are involved.
…
• A claim is lodged after 1 January 2012 and the person states they are unaware of the legislative change that removed family member as an exemption from the NARWP for partnered provisional visa holders.
Example 1: Upon arrival in Australia the person finds that the partner has embellished claims of circumstances, living standards and financial support and the claimant decides to leave. The person lodges a claim for SpB. As the onus is on the person to fully investigate the situation into which they are migrating, this is NOT considered to be a substantial change in circumstances beyond the person's control and SpB is NOT paid.
…
Mr Noonan, on behalf of the respondent, contended that Ms Popal does not satisfy the substantial change in circumstances beyond the person’s control requirement in s 739A(7) of the Act for the reasons reproduced below:
·Mr Popal’s employment with HTC since July 2012 was casual. Accordingly, there was no security of employment tenure. At best, there was a reasonable expectation of the opportunity of that employment subject to its availability.
·Given the inherent nature of the employment, the apparent loss of the HTC employment during his overseas absence (28 February 2013 to 12 June 2013) was not a ‘substantial’ change in circumstances.
·The loss of the employment was not ‘beyond the person’s control’. As the employment was only casual, it was not reasonable for Mr Popal to assume that the job would be available after a 3.5 month (overseas) absence. There is no suggestion that before the overseas departure Mr Popal advised HTC of that absence or enquired about the availability of employment upon his return from overseas or took any steps to safeguard the employment, as far as practical.
Ms Popal and her brother in law submitted that the loss of employment was beyond Mr Popal’s control. However he had not worked in his casual role since early 2013. His brother suggested that his concern about his wife and the need to sort out visa issues had led him to travel to Afghanistan and that he had not expected to be away so long.
The legislation clearly requires the change in circumstances to have been after arrival in Australia. Mr Noonan’s contentions are consistent with the policy presented in the Guide. The Tribunal accepts that the policy is consistent with the legislation and is appropriate to adopt.
The Tribunal accepts that Ms Popal was in financial hardship at the time of application and still is now. However, given the wording of the legislation and the nature of Mr Popal’s employment and the length of time he was away from his casual position, the Tribunal finds that Ms Popal’s circumstances at the time of her application for special benefit do not amount to substantial changes in circumstances beyond Ms Popal's control.
The Tribunal accepts that the situation may well have deteriorated further in the months since Ms Popal’s application. However the Tribunal can only consider the facts as at date of lodgement (Clause 4 of Schedule 2 to the Social Security (Administration) Act 1999). A person seeking special benefit must qualify on the day that he or she lodges the claim. The Tribunal is unable to consider Ms Popal's circumstances that may have arisen after the actual date of lodgement when assessing whether special benefit is payable to her.
The Tribunal finds that Ms Popal did not qualify for special benefit based on her claim lodged on 25 June 2013. The Tribunal is unable to consider whether she would have qualified at a later date or would now qualify.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 27 (twenty ‑seven) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd].......................................................................
Administrative Assistant
Dated 30 April 2014
Date of hearing 21 February 2014 Applicant In person Advocate for the Respondent Mr T Noonan
Litigation and Review Branch, Department of Human Services
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