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 This meant that the classes of visas previously specified in these repealed paragraphs would be required to be included in a determination made under paragraph 7(6AA)(f) for the qualifying residence exemption for holders of those visas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.
Overview
The Social Security (Declaration of Visa in a class of Visas—Qualifying Residence Exemption) Determination 2003, made under the Social Security Act 1991, addresses the issue of establishing qualifying residence exemptions for certain social security benefits for visa holders. This determination was enacted by the Australian Government and aims to streamline and clarify the eligibility criteria for qualifying residence exemptions, thereby ensuring that the correct recipients of social security benefits can be identified and assisted without unnecessary administrative hurdles. The determination revokes the 2000 Determination and updates the classes of visas that qualify for exemption, replacing the temporary visa subclasses with permanent ones to facilitate easier verification and processing by Centrelink. This legislative change aims to ensure that individuals who have transitioned from temporary to permanent visas are appropriately recognised for their eligibility for social security benefits.
Scope and Application
The Social Security (Declaration of Visa in a class of Visas—Qualifying Residence Exemption) Determination 2003 applies to individuals holding specific classes of visas in Australia, specifically subclass 100, 110, 801, 803, 832, and 833 visas, granting them a qualifying residence exemption for certain social security benefits, pensions, payments, allowances, and concession cards. This exemption exempts them from the waiting periods typically required for new residents. The determination affects both current holders of these visas and former holders who have transitioned to permanent visas, thus simplifying eligibility criteria and administrative processes for social security benefits. This determination, being a Commonwealth instrument, applies across Australia and is intended to streamline the application process for social security benefits by clarifying the visa classes eligible for exemptions. The determination does not include temporary visas such as subclass 309, 310, 820, and 826, which are not considered for the qualifying residence exemption, thereby excluding holders of these provisional visas from the benefits outlined in the Act.
Key Provisions
The main operative sections of the Social Security (Declaration of Visa in a class of Visas—Qualifying Residence Exemption) Determination 2003 (the 2003 Determination) are the sections that outline the specific visa subclasses that qualify for a qualifying residence exemption under the Social Security Act 1991. The 2003 Determination revokes the 2000 Determination and replaces the previously specified visa subclasses (subclasses 309, 310, 820, and 826) with new subclasses (subclasses 100, 110, 801, and 814), and includes subclasses 832 and 833. This means that holders of these new visa subclasses, as well as subclasses 832 and 833, will have a qualifying residence exemption for certain social security benefits (subsection 7(6AA)(f)).
The 2003 Determination imposes several obligations and requirements on the parties it governs. Primarily, it mandates that individuals who hold or have held the specified visa subclasses must be granted a qualifying residence exemption, irrespective of any previous visas they may have held. This is to ensure that individuals who have transitioned from temporary to permanent visas are not unfairly disadvantaged in their eligibility for social security benefits. Additionally, it requires the Department of Immigration and Multicultural and Indigenous Affairs to provide evidence of the grant of the specified visas, although it acknowledges that the Migration Regulations do not always require such evidence. The Department must also work to rectify difficulties that Centrelink may encounter in establishing whether a claimant has a qualifying residence exemption when provisional visas are not evidenced.
Breaching the provisions of the 2003 Determination can lead to various civil and criminal consequences. While the determination itself does not specify explicit offences or penalties, breaches of the underlying Social Security Act 1991 can result in significant penalties. For instance, providing false or misleading information to obtain social security benefits can be considered an offence under section 124 of the Social Security Act, which carries a maximum penalty of five years imprisonment or a fine of up to $33,000 for individuals, and up to $165,000 for bodies corporate. Additionally, any administrative errors or failures by the Department of Immigration and Multicultural and Indigenous Affairs in processing visa evidence may lead to civil actions for compensation or rectification. The overarching intent is to ensure that the provisions of the determination are adhered to, thereby maintaining the integrity of the social security system.