Social Security (Declaration of Subclass 851 of Resolution of Status (Class CD) Visa Holders as Refugees) Determination 2008

Overview

The Social Security (Declaration of Subclass 851 of Resolution of Status (Class CD) Visa Holders as Refugees) Determination 2008 was enacted to address the need for immediate access to social security payments for holders of a subclass 851 Resolution of Status (Class CD) visa, exempting them from prior residence requirements. This was achieved by enabling these visa holders to be regarded as refugees under section 7(6) of the Social Security Act 1991. This change was necessary because, under the social security law, long-term payments like Age and Disability Support Pensions require a ten-year qualifying residence, while some income support payments have a two-year waiting period for newly arrived residents. The policy objective of this Determination is to ensure that subclass 851 visa holders, who are often refugees, are not disadvantaged by these requirements. The enacting body for this Determination was the Australian Parliament, which authorised the Minister to declare such visa holders as refugees through a legislative instrument.

Scope and Application

The Social Security (Declaration of Subclass 851 of Resolution of Status (Class CD) Visa Holders as Refugees) Determination 2008 applies to holders of a subclass 851 of Resolution of Status (Class CD) visa. These visa holders are specifically declared to be regarded as refugees for the purposes of the Social Security Act 1991, thereby exempting them from qualifying residence requirements for certain social security payments. The Determination facilitates immediate access to social security benefits such as Age and Disability Support Pensions and income support payments without the need for prior residence in Australia. This application is limited to the Commonwealth of Australia and extends to any individual who holds the specified subclass 851 visa. The Determination does not specify exclusions or thresholds beyond the visa class mentioned and is not subject to subordinate instruments that would extend or restrict its application. It is important to note that this Determination was made in consultation with the relevant government departments and is not intended to have a regulatory impact, compliance costs, or competition implications.

Key Provisions

The key provisions of the Social Security (Declaration of Subclass 851 of Resolution of Status (Class CD) Visa Holders as Refugees) Determination 2008 (the Determination) are centred around ensuring that holders of a subclass 851 of Resolution of Status (Class CD) visa are regarded as refugees for the purposes of social security law, thereby exempting them from certain qualifying residence requirements. Section 4 of the Determination declares that the subclass 851 visa is a class of visa for the purposes of subparagraph 7(6B)(c)(iii) of the Social Security Act 1991 (the Act). This means that visa holders will be treated as refugees under the Act, which provides exemptions from waiting periods for social security payments. This is particularly significant as it enables immediate access to long-term social security payments and certain income support payments without the need for the usual residence qualifications. The obligations imposed by the Determination on the parties it governs are primarily centred around the recognition and treatment of subclass 851 visa holders as refugees under the Act. For visa holders, this means they will automatically meet the refugee criteria for social security purposes, allowing them to access certain benefits without delay. The Act itself imposes requirements on visa holders to maintain their visa status and to notify relevant authorities of any changes. The Determination also places an obligation on the Minister for Social Security to ensure that the subclass 851 visa holders are properly identified and treated as refugees in the administration of social security benefits. There are no explicit offences, penalties, or civil/criminal consequences outlined in the Determination itself. However, any breach of the conditions related to the visa status or misrepresentation of refugee status for the purpose of obtaining benefits could potentially lead to civil or criminal penalties under other provisions of the Social Security Act 1991 or related legislation. For example, fraudulent claims or misrepresentation in relation to social security benefits could result in penalties under sections 124 and 125 of the Act, which include fines of up to $22,200 for individuals and more severe penalties for corporations. The Determination ensures that subclass 851 visa holders can access necessary social security benefits without fear of penalties, provided they meet the conditions of their visa and the requirements of the Act.