Zarko Avramovski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 739

[2013] AATA 739

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0013
Re	Zarko Avramovski
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	13 September 2013
Date of written reasons	14 October 2013
Place	Melbourne

For reasons given orally at the hearing, the Tribunal affirms the decision under review.

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

G. D. Friedman, Senior Member

Social Security – disability support pension – whether applicant satisfies residency requirements - applicant not a resident at time of application – decision affirmed

Social Security Act 1991 s 7(5), 7(6), 94(1)(a),(c),(d),(e)

Social Security Administration Act 1999

REASONS FOR DECISION

G. D. Friedman, Senior Member

14 October 2013

EXTRACT OF TRANSCRIPT PROCEEDINGS       [10.20 am]

10.18 AM, FRIDAY, 13 SEPTEMBER 2013

1. SENIOR MEMBER:  The matter before me is an application for review of a decision by the Social Security Appeals Tribunal on 28 November 2012, refusing Mr Avramovski's claim for Disability support pension made in June 2006 because he did not meet relevant residency requirements.  What I have to determine is whether, at the date of lodgement of the claim in June 2006, Mr Avramovski met the residence requirements of the granting of disability support pension

2. In this matter there is no dispute about the facts that Mr Avramovski came to Australia in 1992, he suffered an injury in 1999 in an accident, and at that time he was the holder of a bridging visa allowing him to remain in Australia.  He was granted a permanent visa that is subclass 851, on 6 June 2002.  He lodged an application for a special benefit on 20 October 2003 that was granted to him, and then he lodged his claim for disability support pension in June 2006.  For reasons that are not known to the Tribunal, a decision was made by Centrelink on 7 August 2012 to refuse the claim for disability support pension, some six years after the claim was made. 

3. Mr Avramovski has sought review of this decision, the decision that was made by the authorised review officer, and in turn affirmed by the Social Security Appeals Tribunal.  In lodging his application Mr Avramovski said:

   I'm not happy with the decision because when I applied for Disability Pension in 2006 I have citizenship in this country and I think that then I had the right to receive Disability Pension.

4. Notwithstanding the claim by Mr Avramovski, I am satisfied that he in fact does not have citizenship and I will come to that in a moment. 

5. The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security Administration Act 1999 (the Administration Act). Clause 4 of Schedule 2 of the Administration Act refers to the start date of an early claim, and to qualify for disability support pension at the time of his claim, made on 28 June 2006 Mr Avramovski needs to satisfy the criteria of section 94(1) of the Act that will enforce on the date of the claim, that is 28 August 2006. Section 94(1)(a) talks about a physical, intellectual, or psychiatric impairment, I find that he satisfies that. Section 94(1)(d) talks about the requisite 20 impairment points, I am satisfied that he had 20 points. As far as section (c) is concerned, a continuing inability to work, I find that he had a continuing inability to work.

6. As far as section 94(1)(e) of the Act is concerned, and this is the crucial part of this application, section 94(1)(e) at the time of the claim for disability support pension requires, that:

   The person either:

   (i) is an Australian resident at the time when the person first satisfies paragraph (c) or;

   (ii) has ten years qualifying Australian residence, or has qualifying residence exemption for a Disability support pension or;       

   (ii) is born outside Australia and, at the time when the person first satisfies paragraph (c)the person:

   (a) is not an Australian resident; and

   (b) is a dependent child of an Australian resident:

   and the person becomes an Australian resident while a dependent child of an Australian resident.

7. Mr Avramovski has resided in Australia since 1992 and I find that he has held a permanent visa since 6 June 2002.  I have already stated that there is no evidence before me that his claim of being an Australian citizen is correct.  I am satisfied that there is no evidence that he is a special category visa holder who is a protected SCV holder. Therefore I find that he met the legislative definition of Australian resident from 6 June 2002. 

8. As far as the continuing inability to work is concerned he made a claim for compensation and damages lodged with Centrelink on 5 November 2003, then he stated that he first became unable to work because of his injury on 6 March 1999. When he made a claim for special benefit on 5 November 2003 he stated that prior to the accident on 6 March 1999 he was working with Whiffen Holdings and after the accident was unable to work. 

9. There is a medical assessment report dated 19 May 2004 which states that he has not been able to work for five years because of back pain and left sciatica.  A doctor's report dated 27 June 2006 states that he has chronic lumbar pain and the date of onset is 1999. 

10. I therefore find that Mr Avramovski had a continuing inability to work from 1999, but he was not an Australian resident until 6 June 2002, so he does not meet the residency requirements set out in section 94(1)(e)(i) of the Act. As far as section 94(1)(e)(ii) of the Act, that requires him to have ten years qualifying Australian residence, or have a qualifying residence exemption as at 28 June 2006 when he lodged a claim for Disability support pension. Qualifying Australian residence is defined in section 7(5) of the Act, which says:

    A person has ten years qualifying Australian residence if, and only if,

    (a) the person has, at any time, been an Australian resident for a continuous period of not less than ten years, or

    (b) the person has been an Australian resident during more than one period, and

    (i) at least one of those periods is five years or more, and

    (ii) the aggregate of those periods exceeds ten years

11. Mr Avramovski has been an Australian resident since 6 June 2002 and the claim was lodged on 28 June 2006. I find that he has not been an Australian resident for a continuing period of not less than ten years, or an Australian resident during more than one period where one of the periods was at least five years, and the aggregate of the periods exceeded ten years. Therefore I find he did not have ten years qualifying residence. And as far as the qualifying residence exemption is concerned, that is defined in section 7(6) of the Act which reads,

    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 Senior's Health Card, or a Health Care Card if, and only if, the person,

    (a) resides in Australia and,

    (b) is either        

    (i) a refugee,

    (ii) a former refugee

12. In section 7(6)(AA) says:

    A person also has a qualifying residence exemption for a Social Security benefit (other than a special benefit) PP (Single), Carer Payment,  a Mobility Allowance, a Senior's Health Card or Health Care Card if, and only if, the person

    ….

    (b) was a family member of a refugee or former refugee at the time the refugee or former refugee arrived in Australia or

    ….

    (f) holds or was the former holder of a visa that is of a class of visas determined by the Minister for the purpose of the paragraph

13. There is no evidence before me that Mr Avramovski was a refugee or is a refugee or a former refugee and there is no evidence that he is a family member of a refugee or former refugee, or that he was a holder of a visa of a class of visas determined by the Minister for the purposes of paragraph (f) of section 7(6)(AA) of the Act. Therefore I find that Mr Avramovski does not meet the definition of qualifying residence exemption in either section 7(6) or section 7(6)(AA) of the Act at the relevant time.

14. For completeness I note that he was born in Macedonia and at the date of the claim there was no social security agreement between Australia and the former republic of Macedonia, and an agreement came into force on 1 April 2011 so is not relevant to this application. For all those reasons I find that as at 28 June 2006 Mr Avramovski was required to satisfy section 94(1)(e) of the Act requiring him to be an Australian resident at the time when he first satisfied paragraph (c), have ten years qualifying Australian residence, or have a qualifying residence exemption. For the reasons that I have already given I find that he did not meet any of those requirements at the relevant date, and the only other relevant provision of section 94(1)(e) of the Act refers to dependent children but I find this is not relevant to the matter before me.

15. Therefore at the date of claim in 2006 I find that Mr Avramovski did not meet section 94(1)(e) of the Act, therefore at that time he was not eligible for disability support pension.

    END OF EXTRACT [10.32 am]

    CONCLUSION

16. The Tribunal affirms the decision under review.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

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

Associate

Dated 14 October 2013

Date of hearing	13 September 2013
Applicant	No appearance
Advocate for the Respondent	Mr M Hester
Solicitors for the Respondent	Department of Human Services