Zandieh-Nadem; Mahdavi-Shahandashti and Department of Family and Community Services

[2000] AATA 391

DECISIONS AND REASONS FOR DECISIONS [2000] AATA 391

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N00/258
GENERAL  ADMINISTRATIVE  DIVISION)                 Nº N00/259  
           Re:     NAZROLLAH ZANDIEH-NADEM AND NAYERAH MAHDAVI-SHAHANDASHTI  

Applicants

And:    SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES           

Respondent

DECISIONS

Tribunal:       Mrs H.E. Hallowes, Senior Member         
Date:             19 May 2000
Place             Sydney
Decisions:     The decisions under review are affirmed.           

(sgd) H.E. Hallowes
  Senior Member
SOCIAL SECURITY — special benefit—whether subject to newly arrived resident's waiting period — whether substantial change in circumstances — refugees from Iran — paid special benefit in New Zealand — understanding that may be subject to six month waiting period for benefits in Australia — no friends or relatives in Australia — destitute — whether substantial change in circumstances
Social Security Act 1991 ss.254(1), 729, 739A
Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481
Re Chelechkov and Another and Department of Social Security (1998) 26 AAR 321
Re Secretary, Department of Social Security and Seshachalam [1999] AATA 73
Re Zoarder and Another and Department of Social Security  (1998) 26 AAR 342

REASONS FOR DECISIONS

19 May 2000          Mrs H.E. Hallowes, Senior Member         

1. Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti sought review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 1 February 2000 under Chapter 6 Part 6.4 of the Social Security Act 1991 ("the Act"). By Act Nº 192 of 1999 the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999, commencing so far as relevant on 20 March 2000, Chapter 6 of the Act was repealed and new provisions with respect to applications for review of decisions of the SSAT came into effect under Division 5 of Act Nº 191 of 1999 the Social Security (Administration) Act 1999 ("the Administration Act"). Section 254 of the Administration Act provides:

   254 (1)       If:

   (a)a person made an application under section 1283 of the 1991 Act before 20 March 2000; and

   (b)the application was not determined before 20 March 2000;

   the application has effect, on and from 20 March 2000, as if it were an application under section 179 of this Act.

   (2)       The date of effect of the decision made in response to the application may be before 20 March 2000.

   (3)       If:

   (a)subsection (1) applies to an application; and

   (b)the date of effect of the decision made in response to the application is before 20 March 2000;

   the decision has effect, for the period that starts on the date of effect of the decision and ends on 19 March 2000, as if it were a decision made under the 1991 Act.

The "person" in this application is the Secretary.

1. Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti are subject to a newly arrived resident's waiting period under s.739A of the Act unless the Secretary, or on review this Tribunal, is of the opinion that Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti have "suffered a substantial change in circumstances beyond their control". Section 739A, which was inserted into the Act on 4 March 1997, provides, so far as relevant:

   739A(1)       Subject to this section, a person who, on or after the commencement of this subsection:

   (a)enters Australia; or

   (b)becomes the holder of a permanent visa; or

   (c)becomes the holder of a subclass 820 visa — Extended eligibility (spouse); or

   (d)becomes the holder of a subclass 826 visa — Interdependency; or

   (e)becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;

   is subject to a newly arrived resident's waiting period.

   739A(2)       Subject to this section, if, immediately before the commencement of this subsection, a person was the holder of:

   (a)a subclass 820 visa — Extended eligibility (spouse); or

   (b)a subclass 826 visa — Interdependency; or

   (c)a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;

   the person is subject to a newly arrived resident's waiting period.
   . . .

   739A(5)       If:

   (a)a person is subject to a newly arrived resident's waiting period; and

   (b)neither subsection (3) nor (4) apply to the person;

   the waiting period starts on the day on which the person:

   (c)first entered Australia; or

   (d)becomes the holder of a permanent visa;

   whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
   . . .

   739A(7)       Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.

2. Qualification for special benefit is provided for under section 729 of the Act, so far as relevant:

   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.

   Note:   special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

   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

   . . .

   (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

   . . .

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with further material lodged by Ms S. Koller, solicitor, Welfare Rights Centre, who represented Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti at the hearing. Ms Koller also provided the Tribunal with a statement of facts and contentions, as did Ms H. Schuster, an officer with Centrelink, who appeared for the Secretary at the hearing. Mrs Mahdavi-Shahandashti gave oral evidence to the Tribunal through an interpreter. On the day of hearing Mr Zandieh-Nadem did not feel well enough to give oral evidence, although he attended the hearing.

4. There was little, if any, dispute about the facts as set out in the statement of facts and contentions lodged on behalf of the applicants.   Mr Zandieh-Nadem was born on 15 July 1920 and Mrs Mahdavi-Shahandashti was born on 1 August 1932 in Iran.   They sought refuge in New Zealand about five years ago.   They have six children, aged between 40 and 51 years.   Two daughters now live in Germany, two daughters and one son live in Canada and one son lives in the United States of America ("USA").   After the children left Iran, someone in Mr Zandieh-Nadem's and Mrs Mahdavi-Shahandashti's community spread a rumour that one of their children had converted to Christianity.  This caused Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti problems with local authorities.   On two occasions Mr Zandieh-Nadem was taken away for questioning.  

5. Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti knew friends who had travelled to New Zealand and on hearing that there was no trouble there, they decided to travel to New Zealand where they were accepted as refugees. They were paid special benefit in New Zealand, as they would be paid under the Act if they had come here directly from Iran and had been accepted as refugees. They found a small Farsi speaking community in New Zealand, their first language, but it was hard for them to obtain the services of an interpreter. They met a friend, Shahim, who could speak English and who interpreted for them but after about two years Shahim indicated that she was going to leave New Zealand to live in the USA. Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti felt socially isolated. Learning English had proved too difficult for them. They travelled to Canada to see if they should live there but returned to New Zealand as their children in Canada were in difficult circumstances. It was cold in Canada and they were not permitted to stay. Shahim left New Zealand.

6. Mrs Mahdavi-Shahandashti became anxious and depressed.   She cried a lot.   Their home was broken into and their difficulty with communicating in English about their problems made her very distressed.   She was diagnosed in New Zealand as suffering from anxiety and osteoporosis.   A scan of Mrs Mahdavi-Shahandashti's left knee taken in New Zealand on 12 February 1999 discloses:

   . . . There is severe osteoarthrosis of the patellofemoral joint with relative normality of the medial and lateral compartments.   There is virtually no residual cartilage in the patellofemoral joint with considerable cortical irregularity and sclerosis.   . . .     (exh A)     

7. Friends, who had relatives in Australia, told Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti that there was a larger Iranian community in Australia and that there was much better access to interpreters. Although they made no official inquiries in New Zealand, Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti understood that, after six months, people who were of employment age were entitled to social security payment in Australia. As they were old, Mrs Mahdavi-Shahandashti thought that there would be no waiting period for social security payments for them as they were now too old to work. They arranged for their belongings, other than those which they sold, to be shipped to Australia. They made arrangements to travel to Australia, arriving here on Friday, 17 September 1999 with the sum of $400. They had been advised that it would be necessary for them to have $400 in order to obtain a health care card. Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti were met by relatives of acquaintances they had met in New Zealand. They anticipated that they would stay with those relatives for a couple of weeks before obtaining social security payments. On Monday, 20 September 1999 they applied for special benefit under the Act.

8. There is no dispute between the parties that Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti are destitute, sick and sad.   They are in debt as they have now been living in a house of an acquaintance to whom they owe a considerable amount of rent.   They rely on food vouchers, health care cards and supplementation by a charitable organisation of any gap in payment for medical services in order to survive.   The vouchers do not provide the food they need in their debilitated state.   Mr Zandieh-Nadem has now been diagnosed as suffering from ischaemic heart disease and chronic airways limitation which had not been diagnosed in New Zealand.   A medical report dated 4 April 2000 from Dr C. Quinton, general practitioner, advises:

   Mr Zandieh-Nadem has attended this medical centre since 13.12.99.   On 13.12.99 he attended with shortness of breath and was treated for chronic bronchitis.   He attended on 22.2.00 with chest pain and dyspnoea and was admitted to Hornsby Hospital with provisional diagnosis of angina.   He was admitted to hospital from 22.2.00 to 28.2.00.
   Diagnosis:
   Ischaemic heart disease and chronic airway limitation (C.A.I.)
   . . .
   Mrs Mahdavi-Shahandashti suffers from hypertension and osteoporosis and also anxiety exacerbated by her husbands ill heath.   (exh B)

9. A social worker, Ms E. Hume advised Ms Koller on 29 February 2000:

   . . .
   They understood that there were reciprocal arrangements between the two countries, New Zealand and Australia, that though they would have to apply for Special Benefit on arrival the only delay would be one of administrative arrangements, not of meeting eligibility or residential criteria.   Yesterday I was provided with this same information by the New Zealand Department of Work and Income (tel. [phone]) when the person who answered my call "checked with her supervisor" and repeated her statement that prior to 1.2.2000 there was "no stand down period" or residential pre-requisite for N.Z. citizen applying for Centrelink benefit.
   . . .
   This couple fall between the categories that exist.   They were ill informed of their entitlements, both by N.Z.'s Dept. of Work and Income and an Australian system that did not advertise and promote the changes in regulations introduced a couple of years ago.   . . .
   Mr Zandieh has been discharged from hospital prescribed medications that require supervision, explanation and incur some cost.   He has not previously required these.   . . .     (exh C)

The Tribunal is satisfied, relying on advice provided by the Welfare Rights Centre, Sydney, that, as at March 2000, a recorded message at the Australian High Commission in New Zealand advises:

Australia and New Zealand are parties to a reciprocal Social Security agreement whereby people can get early access to Age Pension, Invalid Pension or Family Allowance, New Zealand citizens are not eligible for Parenting Payments or Unemployment Payments for 6 months and this is shortly being extended to two years.    (exh D)

1. Section 739A of the Act has been considered by the Full Federal Court in Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481 Mansfield J, with whom von Doussa and O'Loughlin JJ agreed, said, at page 488:

   There is no word or words in s 739A (7) which either expressly or by inference limit the time at which the change in circumstance may occur.  

His Honour agreed with what was said by the then President of the Tribunal, Mathews J in Re Chelechkov and Another and Department of Social Security (1998) 26 AAR 321, at page 329:

Each case needs to be determined according to its own facts.   It will no doubt be unusual for a change in circumstances which occurs before a migrant leaves his or her country of origin to fall within subs (7).   This is because subs (7) will only apply to changes which are directly responsible for the migrant's state of poverty in Australia.
. . .
It will be a question of fact in each case as to whether, at the time of the change relied upon under subs (7), the applicant retained a realistic choice as to whether to continue with the migration or not.   The further back in time one goes between the arrival in Australia and the event which is relied upon as constituting the change, the less likely it will be that the person was irrevocably committed to the migration process.   If he/she had not reached that stage then it could not be said that the person's poverty in Australia was attributable to the change, but rather to the decision to migrate notwithstanding the change.   (emphasis added)

It was not suggested in this matter that changes had occurred to Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti in New Zealand after it was too late for them to change their minds about coming to Australia, but what is relevant from what was said by Mathews J in Re Chelechkov is that subsection 739A(7) only applies to changes which are directly responsible for the person's state of poverty. Mansfield J said in Secara's case, at page 491:

. . . as a matter of practical common sense, their learning of those changes only as and when they did and not earlier was beyond their control.   It is clear that the changes themselves were beyond the Secaras' control.   . . .

At page 492 his Honour posed the question:

. . . can the intending migrant's expectations as to life in Australia, upon learning of the reality, constitute circumstances which change for the purposes of s 739A(7)?

Having referred to what was said by Mathews J in Re Zoarder and Another and Department of Social Security (1998) 26 AAR 342, Mansfield J concluded, at page 492:

. . . if the migrant's erroneous belief as to life in Australia is the product of misleading, inaccurate or inadequate information received in the country of origin, then the difference between the expectation and the reality might well constitute a change in circumstances beyond the person's control.

Mansfield J concluded, at page 492, that subsection 739A(7):

. . . presupposes a newly arrived person in Australia is in sufficiently needy circumstances as to otherwise qualify, in the case of other Australian residents, for some form of benefit under the Act. It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period. Thus, the change in circumstances cannot be the need itself for the benefit under the Act, as the possible existence of that need underlies the legislative policy that, for two years, it should not be met by benefits payable under the Act. In my judgment, the change in circumstances must be some event or events, not necessarily "external" to the person, which creates that need where it did not previously exist or if it did previously exist where it is no longer appropriate to respond to that need by application of the newly arrived resident's waiting period. . . .  (emphasis added)

and, at page 493:

Circumstances may change to make that prospect no longer a real one.   I have referred above to a range of possible arrangements or "expectations" regarding employment once in Australia.   Considerations of health may provide a further example: a person may migrate to Australia expecting to remain in good health, and perhaps having that expectation despite some underlying vulnerability.   An illness, or a relapse, may occur beyond that person's control which no longer enables that person to be self-sufficient.    (emphasis added)

Mansfield J said in Secara's case, at page 494, "learning that a belief as to the law was wrong is not a 'change in circumstances' within the meaning of s 739A(7)". His Honour found that the change to Mr and Mrs Secara's circumstances were in reality no change at all. The only change was their learning of changes to the Act and the decision of the Secretary, subjecting them to a newly arrived resident's waiting period, was restored.

1. Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti are now both ill, Mrs Mahdavi-Shahandashti's illness being diagnosed before leaving New Zealand.   Mr Zandieh-Nadem has now been diagnosed as suffering from angina, apparently not diagnosed until he arrived in Australia.   It is a circumstance which is beyond his control.   However, although involving them in increased expenditure to purchase medication and obtain medical treatment, those factors have no impact on Mr Zandieh-Nadem's and Mrs Mahdavi-Shahandashti's ability to be self-sufficient.   They were never going to be self-sufficient unless they were immediately paid special benefit on arrival in Australia.  

2. In Chelechkov's case Mathews J noted that the immediate cause of the depletion of the applicants' funds was the fact that they brought so little money with them to Australia. Her Honour said at paragraph 39 of her reasons for decision that she did not see how the depletion of such a small amount of money could possibly be described as a substantial change although the beneficial nature of the Act requires a less rigid approach be adopted in relation to migrants who come to Australia with entirely unrealistic expectations as to the cost of living and availability of employment here through no fault of their own.

3. In this matter Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti did not put to the Tribunal that they had an unrealistic expectation as to the cost of living and they were not looking for employment. They did, however, rely on the fact that they had incorrect advice. The Tribunal accepts what was put to it by Ms Koller, that had they sought clarification from Australian authorities of the advice they may not have been provided with correct information. Ms Koller said that the information available through the Australian High Commission in New Zealand was misleading because it was incomplete. Ms Koller made inquiries with respect to information with respect to payment of special benefit in Australia which may have been available to Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti in New Zealand, but, what the Tribunal must consider is Mr Zandieh-Nadem's and Mrs Mahdavi-Shahandashti's belief as to life in Australia and changes which occurred with respect to their health, rather than what they may have found out had they made further inquiries with respect to special benefit. Mansfield J said that the change in circumstances cannot be the need for special benefit under the Act. A wrong belief as to the law is not a change of circumstance. Nor is the fact that Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti would have been entitled to special benefit as refugees if they had come directly to Australia a factor the Tribunal can consider. Much of Ms Koller's submission involved the circumstances which Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti found themselves in in New Zealand with which they could not cope and which persuaded them to move to Australia. Those matters are not relevant with respect to any "change" in circumstances. Ms Koller put to the Tribunal that theirs is a unique case because they did not go through the normal migration process in coming to Australia. They therefore did not receive the correspondence which would have been provided to them as migrants. Ms Koller described the applicants as being:

   . . . at the end of their lives who are not likely to enter the work force and who, unlike other people who are not likely to enter the work force who arrive in Australia, they are not family reunion migrants.

1. The Tribunal does not disagree with Ms Koller's submissions on behalf of Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti that they do not have a support network in Australia as many other migrants have and her view that the two year waiting period was designed with an entirely different migrant in mind. However, those submissions do not assist the Tribunal in applying the relevant provisions of the Act to the circumstances of this matter. Simply because Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti fall outside those contemplated to be caught by the new provisions, section 729A, as outlined in the Explanatory Memorandum, does not mean that the Tribunal should not apply the amended legislation to their circumstances.

2. In Re Zoarder the applicant became obsessively anxious about his financial situation having arrived in Australia with what he thought was a substantial amount of money but which turned out not to be so.   He failed to obtain employment.   The Tribunal found that Mr Zoarder's anxiety state, which then impeded his prospects of employment, was a substantial change in his circumstances beyond his control.   Ms Koller put to the Tribunal that the decision in Re Zoarder had not been disapproved in Secara's case. However, any change in Mr Zandieh-Nadem's and Mrs Mahdavi-Shahandashti's health due to their anxiety in not being paid special benefit under the Act has not affected their ability to be self-sufficient.

3. Ms Koller also put to the Tribunal that the loss of Mr Zandieh-Nadem's and Mrs Mahdavi-Shahandashti's support network in New Zealand when Shahim departed was a substantial change in circumstances.   The Tribunal does not disagree with her submission that a substantial change in circumstances may be the loss of support other than financial support, but it does not accept the rest of her submission.   Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti made their decision to come to Australia after their friend left New Zealand or, at least, when they were aware that she was to depart.   It was not a substantial change which affected their ability to provide for themselves for two years in Australia.   The difficulties posed for Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti in New Zealand with respect to interpreters and the difficulties they had when their house was broken into may be reasons for them to leave New Zealand but again they are not changes in circumstances such that their ability to be self-sufficient in Australia was altered.  

4. Ms Schuster put to the Tribunal that there has not been a substantial change in Mr Zandieh-Nadem's and Mrs Mahdavi-Shahandashti's circumstances nor has there been a change which is beyond their control. She contended that changes which occurred in New Zealand happened before Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti were irrevocably committed to coming to Australia. The Tribunal accepts her submission that Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti were never going to be able to provide for themselves in Australia unless they were entitled to be paid special benefit. It also accepts her submission that the "substantial change" referred to in subsection 739A(7) of the Act cannot be their need for special benefit. Ms Schuster noted that Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti managed their move to Australia, they were able to purchase tickets, travel insurance and to ship their goods. She put to the Tribunal that they were therefore also in a position to undertake inquiries as to any entitlement they may have to special benefit in Australia. She noted that Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti had been able to make arrangements to travel to Canada to check out their entitlement to benefit there. She referred the Tribunal to the decision of Re Secretary, Department of Social Security and Seshachalam [1999] AATA 73 in which the Tribunal said, at paragraph 92 of its reasons for decision:

   We are not satisfied that the applicant has suffered a "substantial change in circumstances beyond (his) control".   The respondent is unable to point to any misleading, inaccurate or inadequate information received by him either in India or from Australia (refer Re Chelechkov).  Indeed it would be more appropriate to suggest that the respondent received almost no information at all originating within Australia.  Any difference between his expectations and reality cannot in the circumstances constitute a change in circumstances which was beyond his control.

Similarly, in these proceedings Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti appear to have received no information originating in Australia.   Ms Koller was asking the Tribunal to assume that had they made such inquiries the information they would have received would have been misleading, inaccurate or inadequate.  

1. The Tribunal finds that any deterioration in Mr Zandieh-Nadem's and Mrs Mahdavi-Shahandashti's health since coming to Australia has not impacted on their means of support. Certainly their circumstances in New Zealand changed when their friend left but they were aware of this change before being irrevocably committed to coming to Australia. It was not a change in circumstance falling within subsection 739A(7). It was after Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti became aware that their friend was leaving to live in the USA that they went to Canada to see if they could live there and get support through their family. They did not have permission to stay in Canada. Mrs Mahdavi-Shahandashti said that they would not have come to Australia if they had known that they would have to wait for financial support here, but she will not return to New Zealand. What has happened to Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti is not of sufficient significance to no longer impose upon them the newly arrived resident's waiting period. If the legislature had wanted to provide a discretion to a decision-maker so that special benefit could be paid to people in the very distressing circumstances Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti find themselves in, the relevant legislation would have so provided. What is to happen to Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti the Tribunal does not know. They did not have an erroneous belief as to life here, but rather, an erroneous belief as to the law.

2. The Tribunal is satisfied that the decisions of the SSAT should be affirmed. Subsections 729A(1) and (2) of the Act apply as Mr Zandieh-Nadem and Mrs Mahdavi-Shahandashti have not suffered a substantial change in their circumstances beyond their control.

   I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of 
   (sgd)   Catherine Thomas
             Personal Assistant

   Date of Hearing:  14.04.00
   Date of Decision:  19.05.00
   Solicitor for the Applicant:           Ms S. Koller, Solicitor, Welfare Rights Centre

   Solicitor for the Respondent:        Ms H. Schuster, Centrelink