EXPLANATORY STATEMENT
Social Security (Declaration of Visa in a class of Visas—Qualifying Residence Exemption) Determination 2003
Background
Prior to 20 September 2000, the Social Security Act 1991 (the Act) provided at subsection 7(6AA) that a person who was the holder of a specified visa had a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance or a seniors health card.
Paragraphs 7(6AA)(a), (c), (d) and (e) of the Act provided that a person holding a:
- subclass 820 visa—Extended eligibility (spouse);
- subclass 826 visa—Interdependency;
- subclass 832 visa—Close ties; and
- subclass 833 visa—Certain unlawful non-citizens;
had a qualifying residence exemption for the payments and concession card listed above.
The Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000 amended the Act to simplify the rules relating to qualifying residence by repealing paragraphs 7(6AA)(a), (c), (d) and (e) of the Act. This meant that the classes of visas previously specified in these repealed paragraphs would be required to be included in a determination made under paragraph 7(6AA)(f) for the qualifying residence exemption for holders of those visas to continue.
The 2000 Determination
The Social Security (Declaration of Visa in a class of Visas—Qualifying Residence Exemption) Determination 2000 (the 2000 Determination), made under paragraph 7(6AA)(f) of the Act, included all of the classes of visas that were previously included in paragraphs 7(6AA)(a), (c), (d) and (e) of the Act. The 2000 Determination also included subclass 309 — Spouse (Provisional) and subclass 310 — Interdependency (Provisional) visas as being visas the holder of which, or the former holder of which, allows the person to have a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance or a seniors health card.
The 2003 Determination
The Social Security (Declaration of Visa in a class of Visas—Qualifying Residence Exemption) Determination 2003 (the 2003 Determination) revokes the 2000 Determination. In doing so, the 2003 Determination also removes visa subclasses 309, 310, 820 and 826, meaning that former holders of these visas no longer have a qualifying residence exemption for certain benefits, and replaces these with visa subclasses 100, 110, 801 and 814.
Visa subclasses 309, 310, 820 and 826 are temporary visas, and holders are not Australian residents for the purposes of the social security law and not eligible for social security payments (except special benefit in some circumstances). The effect of the 2000 Determination is that a holder of one of these provisional visas who has subsequently been granted a permanent visa has a qualifying residence exemption. As a result, these holders are exempt from the newly arrived resident’s waiting period in relation to certain social security payments.
In many instances the Department of Immigration and Multicultural and Indigenous Affairs has not evidenced the grant of one of these provisional spouse or interdependency visas. Instead only the permanent visa has been evidenced. The reason for this is that the Migration Regulations do not always require provisional visas to be evidenced. However, when a provisional visa is not evidenced, Centrelink encounter difficulties in establishing whether a particular claimant has a qualifying residence exemption.
The 2003 Determination will seek to rectify this position by providing that all holders of subclass 100, 110, 801 and 814 visas (as well as subclasses 832 and 833) have a qualifying residence exemption irrespective of what (if any) previous visas were held.
The 2003 Determination commences on gazettal.