Seshachalam; Department of Social Security [1999] AATA 73 (5 February 1999)

Last Updated: 17 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 73

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/422

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Applicant

And BARATHAN SESHACHALAM

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Dr C. Re, Member

Date 5 February 1999

Place Melbourne

Decision The decision under review is set aside and in substitution therefor the decision of the applicant dated 4 March 1998 is restored.

........Sgd. Mr J. Handley.......

Senior Member

CATCHWORDS

SOCIAL SECURITY - special benefit - newly arrived resident's waiting period - whether respondent suffered a substantial change in circumstances beyond his control - whether a change occurred after respondent arrived in Australia - whether the difference between the respondent's expectations and reality can constitute a change in circumstances beyond the his control.

Social Security Act 1991 s.739A

Re Chelechkov & Department of Social Security (1998) 26 AAR 321

Re Clemence and Secretary, Department of Social Security (AAT 13223, 28 August 1998)

Re Secara and Secretary, Department of Social Security (1998) 3 SSR 29

Re Department of Social Security and Fomin (AAT 12703 12 March 1998)

Re Secretary, Department of Social Security and Kaur (AAT 12667, 2 March 1998)

Re Secretary, Department of Social Security and Lugovskoy (AAT 13058, 3 July 1998)

Re Shaikh and Department of Social Security (AAT 12785, 8 April 1998)

Re Tadros and Secretary, Department of Social Security (AAT 12649, 26 February 1998)

Re Zoarder and Department of Social Security (1998) 26 AAR 342

Secretary, Department of Social Security v Calin-Al Secara & Ors [1998] 1510 FCA (26 November 1998) HTTP://www.austlii.edu.au/au/cases/cth/federal

Secretary, Department of Social Security v Cooper (1990) 26 FCR 13

REASONS FOR DECISION

5 February 1999 Mr J. Handley, Senior Member

Dr C. Re, Member

1. On 17 February 1998 the Secretary of the Department of Social Security ("the applicant") rejected an application made by Mr Seshachalam ("the respondent") on 30 January 1998 for special benefit under the Social Security Act 1991 ("the Act"). An Authorised Review Officer affirmed that decision on 4 March 1998. The Social Security Appeals Tribunal, however, in a decision dated 23 March 1998, directed the applicant to reconsider its previous decision by reason of it having decided that the respondent was not subject "to a newly arrived resident's waiting period" under s.739A(1) of the Act. Having regard to the provisions of s.739A(7) of the Act, a finding as above is only permitted if the Tribunal was satisfied that the respondent "suffered a substantial change in circumstances beyond (his) control". On 17 April 1998, the applicant sought a review of this decision of the Social Security Appeals Tribunal.

2. At the hearing Ms Mortimer appeared on behalf of the applicant and Mr Risstrom appeared on behalf of the respondent. The hearing commenced on 15 July 1998 and resumed on 5 & 6 August 1998. The applicant called two officers of the Department of Foreign Affairs presently located in New Delhi and Manilla who gave their evidence by telephone. The respondent gave evidence as did his wife and two medical practitioners. Witnesses were interposed throughout the hearing having regard to their availability and time differences between Australia and New Delhi and Manilla.

The Legislation

3. The applicant argues that the respondent is not entitled to benefit pursuant to s.739A of the Act. That section was inserted by the Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Acts 1997. That Act received its assent on 4 March 1997.

4. Subsections 739A(1), (2), (5) and (7) read as follows:

s.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.

s.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.

s.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.

S.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.

Barathan Seshachalam

5. Mr Seshachalam is 45 years of age, married and has two children aged 10 and 12 years. He and his family entered Australia from India on 9 December 1997.

6. In India he was a senior manager of design in an aeronautical corporation. He was responsible for four to five staff and expected, with continuing promotion, that he would have become the assistant general manager of the company that employed him. He qualified for employer subsidised housing and subsidised meals.

7. In 1995 he and his family decided to emigrate to Australia. An application was made to the Australian High Commission in New Delhi, which resulted in him having to undergo medical examinations and a preliminary interview. At that time Mr Seshachalam said his only knowledge of Australia was gleaned from reading newspapers. In the intervening period of two years from 1995 until 1997 when his visa was granted, Mr Seshachalam wrote a number of letters to the Australian High Commission seeking additional information concerning Australian conditions. In August 1997, not having had his correspondence answered, he travelled from Bangalore to New Delhi, being a rail trip of 2,500 km over two days. He was only able to spend one day at the High Commission because his employer permitted him to have five days leave. Four of those five days necessitated travelling. Mr Seshachalam intended to use the opportunity to obtain further information of Australian conditions and have a number of questions answered by commission officials. He also wanted to observe a video which he understood was available for viewing at the High Commission.

8. Upon attending an enquiries counter at the High Commission office in New Delhi Mr Seshachalam said that he was given the opportunity to ask two or three questions only within a period of about 5 minutes. Those questions concerned the cost of living in Australia and job opportunities. He said he was directed by a member of staff to attend the High Commission library where he could have access to Australian newspapers and magazines. The newspapers apparently advertised a number of job vacancies which Mr Seshachalam believed he was qualified to undertake. At that point in time his visa had been issued and a condition of it was departure from India within 6 months. Upon reading the newspapers and returning to Bangalore Mr Seshachalam decided that arrangements should be made to leave India and travel to Australia.

9. At that time he had the equivalent of $A7,000, however $4,000 was spent on airfares for himself and his family. He travelled to Australia therefore with $3,000 only. Prior to travelling to Australia he had resigned from his employment.

10. Mr Seshachalam acknowledged that he had been advised by a consular official upon interview at Bangalore in 1995 that it would be in his interests to travel to Australia alone and survey job opportunities before committing himself and his family to emigrate. He said this was not possible because he was not able to obtain sufficient leave from his employer in India and in the event had he been able to obtain employment in Australia, he did not believe that he would be able to leave it to return to India to have his family join him nor did he believe that he could take up employment in Australia whilst he remained employed in India.

11. Upon arrival in Australia Mr Seshachalam and his family initially stayed at the house of a friend in Werribee for 3 days. A room was made available to them and all four slept on the floor. Mr Seshachalam believed that he would immediately obtain employment but having arrived in Australia on 9 December 1997 he was not aware that factories and businesses tended to wind down and close during the Christmas vacation. He then found employment very difficult to obtain. Indeed he has not been able to secure any permanent employment since his arrival in Australia. He was ultimately referred to a Centrelink office in Glen Waverley where his applications for Newstart Allowance and Special Benefit were refused, however Mr Seshachalam's wife qualified for Family Payment which provided limited income. Later there was a referral to a Newstart Job Club which provided assistance in job applications and enquiries of employers. Mr Seshachalam said that he has applied for in excess of 300 jobs and has had 25 interviews. He has also applied for work in Queensland NSW and South Australia.

12. In addition to applications for employment in engineering related industries, Mr Seshachalam has applied for employment as a fitter, mechanic, watchman, maintenance worker and gardener. On the first day of the hearing of this application he was working in a Job Club sponsored placement at Robert Bosch in Mordialloc at $5 per day. His work involved engineering drafting, which he hoped would qualify him (with Robert Bosch), for full-time employment.

13. Mr Seshachalam has sought assistance from Welfare agencies and the Salvation Army who have provided him with food vouchers. The monies brought with him from India have all been expended on daily living needs together with the purchase of bedding, school fees, clothing and public transport costs. He has suffered anxiety and headaches, which he associates with the stress of an inability to secure employment, an absence of income and a reaction to being unsuccessful at job interviews. He has attended a general medical practitioner and has recently been referred to a psychiatrist.

14. Mr Seshachalam reaffirmed on a number of occasions during his evidence that he was confident he would obtain employment within a short time of his arrival in Australia. He was a member of a professional association which had indicated to him that his qualifications would be acceptable in Australia. He was not aware that industry would shut down during the Christmas period and was also not aware that employers apparently preferred to employ persons who have "local" experience. He said that there was no mention in any of the job advertisements he observed in newspapers at the High Commission in New Delhi of employers preferring applicants with local experience. Insofar as some employers have indicated that they are not prepared to accept his overseas qualifications, Mr Seshachalam has enrolled at a program at the Box Hill College of Tafe which is designed to enhance the professional qualifications of persons who have emigrated from overseas. For this he has incurred additional expense. The only full-time salaried employment that Mr Seshachalam has received in Australia was for one week as a casual welder at a Factory in Mordialloc for which he was paid $580.

15. At the second day of the resumed hearing Mr Seshachalam said that in the interim he had located a number of other documents relevant to his application.

16. He produced two brochures which he said were forwarded to him by the Australian High Commission in India promoting Adelaide as a place of residence. Mr Seshachalam said that he was impressed by the commentary within the brochures with respect to availability of schooling and employment and the opportunity to obtain interest free loans. One of the brochures had a coupon for completion by intending applicants. Mr Seshachalam said that he completed that coupon and forwarded it to the advertised office in Adelaide prior to his departure. These documents were received into evidence as Exhibit 9.

17. Mr Seshachalam also produced documents he received from the Institute of Engineers Australia confirming that his academic qualifications would be recognised and giving a commentary on employment opportunities and what would be expected of potential Australian employers. Mr Seshachalam said that he was encouraged by the recognition of his qualifications and the advice he received from the Institute with respect to potential employment.

18. Mr Seshachalam also told us that the Institute had forwarded to him a brochure comprising approximately 20 pages recording job vacancies for professional engineers. He said he was influenced by the contents of this document and believed that he would have little difficulty obtaining employment. However Mr Seshachalam said that he had misplaced or lost that document along with a number of other professional papers upon his arrival in Australia and was therefore unable to produce it in evidence.

19. In cross-examination Mr Seshachalam said that he chose Australia in January 1995 to emigrate with his family because of what he had observed on television and from observing documentaries. He had also previously applied to immigrate to Canada but had been unsuccessful in that application. He had spoken about conditions in Australia to friends in Bangalor who had relatives living here and was also influenced by a French tourist that he met on a bus trip when returning home from Bangalor. He said the tourist had told him that accommodation was plentiful and cheap in Adelaide where he could expect to rent a two bedroom unit at $70 per week. He said he spoke to this tourist for many hours on the bus trip and was given a "clear picture of Australia". Mr Seshachalam said that he spoke to the tourist in French.

20. Mr Seshachalam had lived in France between July or August of 1987 and January 1989 where he was a full-time student. He was sent there by his employer who provided him and his family with accommodation and a salary. Mr Seshachalam previously learnt French and whilst in France travelled to London and Spain as a tourist.

21. Mr Seshachalam said that he paid his membership fees to the Institute of Engineers Australia in the sum of $300 after his visa was approved on 11 June 1997. The only job enquiries that he had made prior to the visa being granted were within his correspondence to the High Commission. As we were told by Commission officers, it was departmental practice not to respond to correspondence. It was Mr Seshachalam's intention to further inform himself about conditions in Australia by observing a video when he attended the High Commission. He understood that it would be available to persons who had been granted visas. He said he learnt this from other Indian nationals who had been granted visas. He confirmed that it was not information given to him by the High Commission. It was not until he arrived in New Delhi that he learnt for the first time that the video had ceased being displayed some months previously. Telephone enquiries were not made of the High Commission by him because of the cost. Mr Seshachalam said that although his visa was granted in June 1997 he became firm in his intention to travel to Australia after he read newspapers at the High Commission library in New Delhi in August 1997 and observed the number of job vacancies. Additionally the results of the job scan forwarded to him from the Institute of Engineers caused him to believe work was plentiful in Australia and that he would have little difficulty securing employment.

22. On further questioning Mr Seshachalam said that the newspapers that he read gave him a "good impression" of Australia. He said the newspapers he looked at covered a three or four week period and that he carefully scrutinised the job vacancies. Although he had limited time available to him, he made notes on paper that he borrowed from another person in the library. Mr Seshachalam attended the High Commission without a notebook because he believed that he would be entitled to make photocopies of pages from the newspapers. Apparently the library attendant refused him access to a photocopier. Applications were not made to any of the employers who advertised job vacancies nor did he seek employment through recruitment agencies in Australia because according to Mr Seshachalam, the cost of postage was prohibitive. In addition he was not then aware when he would be leaving India and could not indicate to any potential Australian employer when he could commence employment. With respect to the brochures received from South Australia (Exhibit 7) Mr Seshachalam said that low interest loans were offered to successful applicants. Despite this Mr Seshachalam said that he did not apply for a loan in South Australia but in preference decided to migrate to Victoria. He said that Victoria had a reputation as "the best place for aeronautical engineering". He learnt this from statistics that were made available to him in India and from books that he had read in a library in Bangalor. Additionally it was his belief that Victoria had more job opportunities than South Australia. Despite this, brochures were not sought from Victorian institutions or Victorian Government agencies.

23. Mr Seshachalam said that he and his family lived in accommodation owned by his employer in India. He owned the contents which he sold before emigrating and for which he achieved approximately 2,000 rupees ($100). The sum of $7,000 referred to in the documents, being the sum of money available to him, which was used to meet the cost of airfares and monies to bring to Australia, was paid to him by his employer from his membership of a provident fund. It was not savings. The real estate that is referred to in his interview with Mr Smyrk on 5 September 1995 (see paragraph 54) was a block of land being 40 feet by 60 feet which was purchased at a place 40km from Bangalor in 1985 for $400. It did not have electricity or water connected. The sum of $400 (5,000 rupees) was estimated to be the equivalent of 3 months of salary. Mr Seshachalam said that he sold it in January 1997 before his visa was approved in order to meet a loan that he had taken out from friends in order to have second medical examinations arranged with respect to his visa application. The land was sold in January 1997 for $1,000. The medical examinations for him and his wife and two children cost 10,000 rupees ($800). Mr Seshachalam was referred to a letter that he wrote to the High Commission in New Delhi in August 1996 where he wrote that he "will be taking enough money to Australia for living in case of my selection". He explained that he would have 2.5 lacs (we were told later that 1 lac is the equivalent of 100,000 rupees). It was his belief then based on the advice he had been given by the French tourist on the bus trip to Bangalor that rental of $70 per week could be funded from the available monies that he would take to Australia until such time as he obtained employment which he believed he would readily find.

24. Mr Seshachalam agreed with Ms Mortimer that he was capable of reading, writing and speaking English well and was also a person genuinely careful and conscientious. He was then taken to Exhibits B and 9. Exhibit B is a bundle of documents tendered by the respondent comprising a letter from the Australian High Commission in New Delhi, a copy of the settlement interview conducted by Mr Smyrk on 5 September 1995 and a two page proforma document apparently sent to successful visa applicants. It is the first page only of the 2 page document forming part of Exhibit B. The second page was not tendered by Mr Seshachalam. It contains information with respect to employment opportunities in Australia. That page cautions applicant's that "Australian labour market conditions vary significantly from time to time and between regions". The letter says that employment is not guaranteed, that immigration, local government and ethnic affairs officers in Australia "cannot" assist in finding employment, applicant's should not write to the High Commission seeking employment assistance and the Commonwealth Employment Service "will provide employment advice after your arrival in Australia". When he was asked to observe the second page of that proforma document Mr Seshachalam said that he had never seen it. Mr Seshachalam agreed that he received the first page of that document but had not ever seen the second page and denied that his answer was - in the circumstances - "convenient" so as to impress that he had never been cautioned by the Australian High Commission with respect to employment conditions in Australia.

25. Mr Seshachalam was then taken to his letter to the Australian High Commission of 18 August 1997 (Exhibit F), where he refers to a document that he completed and where he refers to "Part B" being a document referred to on "the second page of the important information for migrants" form. Mr Seshachalam was unable to explain his earlier answer that he had never seen the second page of the proforma document when that page is referred to in his letter to the High Commission being Exhibit F.

26. Mr Seshachalam was then taken to the second page of the letter granting his visa (T-12). Part of that page also refers to employment opportunities in Australia, recognition of qualification and makes "no guarantee of employment in Australia". Mr Seshachalam said that he recalled the document and recalled reading it and understood it. Nonetheless it was his belief that his qualifications "would be very much wanted" and he "thought it would be easier to get a job because of my qualifications".

27. Mr Seshachalam was then taken to page 3 of that document which spoke about the prohibition on receipt of social security benefits except that "migrants may be able to claim special benefit where their circumstances have changed since their arrival for reasons beyond their control resulting in hardship". Mr Seshachalam said that he understood before he arrived in Australia that he would not be able to claim benefits within two years and that he first learnt of special benefit after he arrived in Australia and had been rejected from a number of jobs and after he first attended a Social Security Office. He said that he was entitled to special benefit because his circumstances within Australia were beyond his control. He said that not being selected for employment following interviews was beyond his control and he had no idea that the "situation here was anything like it is". He spoke of daily uncertainty with respect to the cost of living, poor health and absence of accommodation. He spoke of the cost of living in Victoria being very expensive compared to what he understood to be the case in Adelaide and his general disappointment in not being able to "start a new life here".

28. The respondent was then taken to exhibits 7 and 10 which spoke about employment conditions in Australia and he was again reminded that no agency or High Commission Office or Officer ever guaranteed work. Similarly he was reminded of the contents of the letters that he received from the Institute of Engineers in Australia which cautioned him with respect to any expectation of readily finding work. Mr Seshachalam continued to acknowledge the contents of these documents but again said that he was firm in the belief that he would readily obtain employment. He said the correspondence that he received when he previously made an application to emigrate to Canada was similar in language. He was aware that countries to whom persons intended to emigrate did not guarantee employment. Nonetheless whilst he agreed that Australia had a competitive employment market it was his belief that his academic qualifications and his overseas study experience in France would present well to potential employers. When Ms Mortimer persisted with questioning with respect to employment conditions in Australia Mr Seshachalam agreed that the documents and correspondence he had received warning him against any expectation of readily finding employment "could not have been made any clearer".

29. Mr Seshachalam agreed that the only direct enquiries that he had made in India concerning the potential for employment in Australia and the availability of employment was attending the High Commission office in New Delhi for one day, reading Australian newspapers, asking three questions at a counter, and a belief that bringing $3,000 in cash would be sufficient to meet day to day costs until such time as work had been obtained. Additionally Mr Seshachalam said that he had "believed" the French tourist he met on the bus to Bangalor and regarded his comments concerning Australian conditions as being "encouraging".

Sumathi Subbarayan

30. Ms Subbarayan is the wife of Mr Seshachalam.

31. She said that her family was happy in India but since arrival in Australia there have been "a lot of problems". These problems, she said, were associated with the absence of permanent accommodation and inability to obtain employment. She said she discussed immigration to Australia with her husband and both were of the belief that employment would be readily obtained. It was believed that employment would be obtained within one or two months.

32. Since arrival however she has become very disillusioned. She told us that her family lived in private accommodation in Werribee for three days immediately after arrival and then were given access to a single room in private accommodation in Glen Waverley for about four weeks. Initially all four persons slept on the floor of the room. She said their son developed a skin rash and was persistently sneezing and their daughter suffered from head-lice. Ms Subbarayan said that she suffered left leg swelling and her husband has suffered depression and headaches. They do not have private transport and second hand school uniforms were acquired for the children. She also said that they have not had "good food" since their arrival in Australia.

33. Ms Subbarayan said that the only employment she has obtained in Australia was as a room attendant at a hotel in Melbourne. She described it as a "two week placement" but was not paid any wages. She would prefer to work and has secretarial qualifications.

34. Ms Subbarayan painted a bleak picture of the immediate future for her family. She said she and her husband worry every day because of the absence of transport, money and employment. She said they "think about tomorrow" constantly.

Leslie Chen

35. Dr Chen is a psychiatrist in practice in Melbourne. Mr Seshachalam was referred to him by Dr Ganesh and he provided a report dated 26 July 1998. Dr Chen has consulted with Mr Seshachalam once only on 18 July.

36. It was his opinion that "Mr Seshachalam does not have an underlying psychiatric illness or depression but he is obviously emotionally affected by the adversities he has encountered since coming to Australia". He has prescribed anti-depressants but only to help Mr Seshachalam sleep and to "lift his spirit". He has also referred Mr Seshachalam to the Commonwealth Rehabilitation Service.

37. In cross examination Dr Chen said that Mr Seshachalam was not clinically depressed and he recalled Mr Seshachalam as being an articulate and intelligent person. He confirmed that the consultation was arranged upon referral from Dr Ganesh and was not medico legal in nature.

Sarathy Ganesh

38. Dr Ganesh is a general practitioner in practice in Glen Waverley. Mr Seshachalam and his wife have both attended her for treatment.

39. She told us that on the first consultation with Mr Seshachalam she took a history of him suffering chest pain, headaches, and insomnia. She regarded those symptoms as being stress related which she in turn associated with his inability to obtain employment and accommodation since arrival in Australia.

40. She continued to see Mr Seshachalam and in July noted that he was anxious and had difficulty sleeping. Dr Ganesh said that she referred Mr Seshachalam to Dr Chen because she "wasn't sure how to handle" his symptoms and was concerned that he may be "getting into depression". Dr Ganesh told us that she has treated Ms Subbarayan for conjunctivitis.

41. In cross-examination Dr Ganesh said that she first consulted with Mr Seshachalam on 20 April 1998 and Ms Subbarayan on 9 March 1998.

Marc Theoner

42. Mr Theoner, who gave his evidence by telephone, is presently the acting principal migration officer with the Australian High Commission in New Delhi. He has been with the Department of Foreign Affairs for 10 years and has been stationed in New Delhi since April 1997. His wife is Peta Shepherd who also works at the High Commission and who signed a letter to Mr Seshachalam on 11 June 1997 confirming that his application for a visa had been successful.

43. Mr Theoner said that he could not recall processing the application made by Mr Seshachalam but said that his application would have been processed - consistent with departmental policy - against legal criteria imposed by relevant legislation. Mr Seshachalam would have satisfied required health and character clearances and would have also satisfactorily presented at an interview where minimum standards concerning language ability, educational skills and age would have been met.

44. Mr Theoner agreed that Mr Seshachalam's letters requesting information between his first application in 1995 and the grant of the visa in 1997 would not have been answered. He stated that his office received 1800 migration applications in 1997 and presently there are 6,100 undecided applications, of which 3,500 applications are with respect to the independent migration category being the category of visa granted to Mr Seshachalam and his family. He said the High Commission staff comprises 20 Indian nationals and 5 Australian officers and consequently there are insufficient resources to permit a response to correspondence received by visa applicants.

45. He said some information relating to Australia is available at the High Commission in New Delhi, for visa applicants. There is limited information available from Australian newspapers and magazines and a Department of Social Security ready reckoner wall chart is available for observation. The newspapers are located in the public affairs office of the High Commission within which a staff member is permanently employed. Mr Theoner said that Australian telephone books are also available by persons who make enquiries. The video which Mr Seshachalam referred to was discontinued in April 1997 and would not have been available to him in August 1997 when he attended.

46. With respect to Indian nationals who make visa applications for migration to Australia, Mr Theoner said that he had observed a difference between those that have travelled previously and those that have not. It was his experience that persons who have previously travelled hold an expectation that they will have little difficulty obtaining employment in Australia. Mr Theoner was aware that Mr Seshachalam had previously lived with his family in France for 18 months. Mr Theoner said that it was Departmental policy to advise persons who enquire concerning job opportunities in Australia that there is an unemployment rate of approximately 10% and that Australian nationals have difficulty obtaining employment. It was his experience however that once a visa had been granted, persons tend to concern themselves with leaving India and direct their attention to obtaining employment once they arrive in Australia. He said that the expectations held by Indian persons of obtaining employment in Australia arise out of cultural factors and by a huge population which is generally very competitive. It was his experience that communicating an unemployment rate in Australia of 10% was largely meaningless to Indian persons where, in India, there presently exists an unemployment rate in excess of 30%.

47. It was his experience also that most Indian nationals who make migration applications choose either Australia, Canada or the United States. He has learnt that these three countries are chosen because of an expectation held by Indian persons that there is a good quality social security system that is available in the event of a need for welfare. Additionally it was his belief that most Indian persons choose to leave because of a belief that Australia has a higher standard of living, a better labour market, a lesser population and greater opportunities.

48. Mr Theoner was referred to a document entitled "Two year waiting period for Social Security Payments in Australia". This was received into evidence as Exhibit C. The document was issued by the High Commission upon visas being granted. He said the practice of sending this document "ceased some time late last year" (in 1997). He could not say whether it had ceased at 11 June 1997 when the visa was granted. The letter to Mr Seshachalam confirming a visa had been granted included information concerning ineligibility for Social Security benefits within 2 years of arrival in Australia (Exhibit 3). Mr Theoner said it was therefore unnecessary to continue to send the document referred to above.

49. In cross examination Mr Theoner said that very few applicants for visas or persons who have had visas granted make enquiry concerning employment conditions in Australia. He was aware from perusal of the respondent's file that letters had been sent seeking information with respect to the availability of employment in Australia and agreed also that his letters were unanswered. He said it was his experience that most Indian persons prefer to seek information personally either by attending an information counter or perusing information made available. In the present application the information made available by the High Commission comprised brochures with respect to visa applications, social security wall charts, newspapers and telephone books in a public viewing area within the High Commission compound. He agreed that the showing of a video upon Australian conditions was discontinued prior to the visa application being granted and that Mr Seshachalam would not have had access to it in August 1997 when he attended the High Commission office.

50. He agreed also that there were some enquires made from time to time concerning cost and availability of real estate in Australia however his attitude is that the High Commission staff are not employment agents or real estate agents and are not qualified to respond adequately to enquiries of this nature. He said it is practice to refer persons to local newspapers and have persons make their own enquiries.

Ross Smyrk

51. Mr Smyrk is presently the second secretary of Immigration at the Australian Embassy in Manilla. He has held this posting since September 1997. He was previously an assistant manager in Melbourne and has held a posting as a senior migration officer for two years in New Delhi.

52. Mr Smyrk was referred to his notes of an interview with Mr Seshachalam found at Exhibit B. The notes of the interview are dated 5 September 1995.

53. Mr Smyrk said that his practice between 1993 and 1995 when he was posted to New Delhi was to conduct interviews as part of a team throughout India in major provincial centres in Madras, Bangalore, Mumbai (Bombay) and in New Delhi. Between 12 and 16 interviews were scheduled each day. Mr Smyrk could not remember his interview with Mr Seshachalam.

54. The purpose of the interview with respect to independent visa applicants (the type of visa for which Mr Seshachalam applied) was to assess the settlement prospects of visa applicants within Australia. Because independent visa applicants had no family or relatives within Australia (therefore "independent") it was the policy of the Department to ensure that they could "settle without trouble". Mr Smyrk said that these interviews are conducted after visa applicants have satisfactorily completed all other preliminary stages of their intended migration namely health and security clearances.

55. The questionnaire and the notes made by Mr Smyrk is reproduced as follows-

"SETTLEMENT INTERVIEW/ASSESSMENT

PERSONAL BACKGROUND:

Family lived in France for 18 months, whilst PA studied.

ENGLISH CAPABILITY:

20 point standard, wife has good english.

REASONS FOR MIGRATION APPLICATION:

For career prospects, quality of life.

INTENDED ADDRESS/CONTACTS IN AUSTRALIA:

To settle in Victoria because of job apps. Friend in A/a, but no contact.

KNOWLEDGE OF GEOGRAPHY, ENVIRONMENT, CULTURE, LANGUAGE:

Very little, but has capacity to learn.

KNOWLEDGE OF ECONOMY, SERVICES, BENEFITS:

Accept, although limited.

AVAILABLE FUNDS: 1.2 lacks, from which airfares. Has land, but not to convert immediately.

ASSESSMENT:

For a professional who has spent 18 months in France, very little effort to "bone-up" on Australia, economically or socially! 'stated funds of only 40,000 R's for transfer, but has property. Given bod and counselled to investigate job opportunities and acquire more liquid funds

Sgnd

R Smyrk

SMO

5.9.95".

56. The notes under the sub-heading of "Personal Background" were made upon Mr Smyrk being satisfied that Mr Seshachalam did have an ability to adapt to a different culture and a different way of life. He was impressed that Mr Seshachalam had previously lived in France for 18 months and said that it was rare to interview an Indian national who had previously lived overseas. He regarded this as being a positive feature of Mr Seshachalam's application. The attaining of a score of 20 with respect to "English Capability" was also regarded as being a positive feature and was regarded as being a "top mark". This was also regarded as a positive feature.

57. The expressed reasons for migration namely obtaining employment and quality of life were also regarded as positive and suggested to Mr Smyrk that Mr Seshachalam was a person of considerable motivation. The reasons for enquiring of the "intended address" was to ensure that visa applicant's did have support and family mechanisms within Australia. Although Mr Seshachalam apparently did not have a good "Knowledge of Geography" Mr Smyrk was satisfied that by reason of Mr Seshachalam having previously lived overseas he would be capable of adapting readily to a new country and gather information with respect to local conditions.

58. The information under the sub-headings of "Knowledge of Economy.......", "Available Funds" and "Assessment" did cause Mr Smyrk some concern, nonetheless he was prepared to exercise a "benefit of doubt" ("bod") toward Mr Seshachalam. Mr Smyrk has noted that Mr Seshachalam held 120,000 rupees at the time of interview. (1.2 "lac" refers to a unit of currency, where 1 lac equals 100,000 rupees). Mr Smyrk noted that Mr Seshachalam told him that he did not intend to sell his real estate in India but believed that he would have additional funds after interview and prior to departure. He was concerned that Mr Seshachalam had apparently made little effort to obtain information concerning Australian conditions and he did counsel him. He regarded Mr Seshachalam as being "borderline". He did have the authority to refuse the application but was impressed by Mr Seshachalam's knowledge of English and having previously lived overseas.

59. Mr Smyrk said that the policy generally held by the Department was that as a rule of thumb applicants should have at least $A250 equivalent per week if intending to reside in an Australian capital city. He denied that he would have told Mr Seshachalam that travelling with $1,000 would have been sufficient to establish himself in Australia. Mr Smyrk understood that this would amount to living expenses for four weeks only which he regarded as being inadequate.

60. He said that some applicants do ask how much money would be needed to live in Australia yet advice generally is not given. In his experience when families intend to migrate usually one adult member travels alone first to secure employment and the remaining family members travel to Australia later. If he detects that visa applicants hold unrealistic expectations of Australia they are counselled. Mr Smyrk said that he would now assume, by reason of Mr Seshachalam holding real estate in India, that in the event that he did deplete his funds in Australia he would be able to call on resources in India to assist. He recalled also that there was a practice in or about 1995 to give to visa applicants a "pack of information" containing leaflets and brochures from the Department of Social Security and the Department of Health when visas were granted. Mr Smyrk also said that settlement issues of persons migrating to Australia were not then regarded as important as they are now.

61. Mr Smyrk said by reference to his notes that it was likely that he would have counselled Mr Seshachalam to obtain more liquid funds to bring with him to Australia. When asked whether $3,000 would have been an adequate sum to bring to Australia Mr Smyrk said that the policy at the time was to encourage persons to bring with them sufficient funds to maintain themselves for six months. However Mr Smyrk was impressed that Mr Seshachalam had previously lived overseas, had a good command of English and had represented to him that he had a property in India.

Submissions

The Applicant

62. Ms Mortimer on behalf of the Department of Social Security submitted that the "unequivocal purpose of s.739A(7) is a "broad, clear and extensive legislative exclusion from an entitlement to Social Security benefits except in the case of a special benefit and then only in very limited circumstances. She submitted that ss.(7) should not be construed broadly so as to impair or negate its purpose. To this extent we were urged not to follow a decision of the President in a decision of Re Secara and Secretary, Department of Social Security (1998) 3 SSR 29 (also found at AAT 12702, 12 March 1998). (This decision was the subject of an appeal to the Federal Court in Adelaide by Federal Court, reference SG47/98. The Secara decision is also found as a note within volume 26 of the Administrative Appeals Reports at pages 334 to 337 inclusive). Nonetheless Ms Mortimer did acknowledge that the Tribunal was not bound by its own decisions and Members might would regard the decision in Secara with persuasion, it having been delivered by the Tribunal President. In the alternative it was submitted that if we preferred the construction of ss.(7), as adopted by the President in Secara, then the circumstances in which Mr Seshachalam found himself were not such as to constitute a substantial change in his circumstances.

63. With respect to the medical evidence heard and advanced as constituting a special circumstance we were asked to consider the decision of the President in Re Zoarder and Department of Social Security (1998) 26 AAR 342. In that case it was submitted that Her Honour found that Mr Zoarder was "obsessively anxious". It was submitted in the present case that there was no evidence of any psychiatric illness on the part of Mr Seshachalam. Additionally we were urged to apply the guidelines published by the applicant as found at T-11 however the only factor submitted as having any relevance in the present circumstance was factor 8 which spoke of depletion of available funds to meet the cost of medical treatment. It was submitted however that there was no evidence that funds were used to meet the cost of medical treatment or indeed could it be said that there is any treatment of a kind contemplated by this guideline. Ms Mortimer said the frequency of the respondent's applications for employment and his presentation at interview would suggest that he does not have an illness requiring any treatment.

64. With respect to the circumstances generally which should be considered Ms Mortimer submitted that the proper construction of ss.(7) is to consider and compare circumstances of a person during their time in Australia only. That is to say a person's circumstances in their native country cannot be compared with a person's circumstances after arrival in Australia so as to determine whether there has been any substantial change in circumstances. Ms Mortimer acknowledged that the sub-section does not have words such as "since the person's arrival in Australia" or "since entry to Australia" or similar, nonetheless, a person's circumstances within Australia only can constitute the basis for examination. She said this was implied by the sub-section and was consistent with the Minister's Second Reading Speech. It was submitted that if we were to find an ambiguity by the sub-section we should construe it consistent with the intention expressed by the Minister and not in a "narrow, technical" manner (refer to Secretary, Department of Social Security v Cooper (1990) 26 FCR 13). It was submitted that the legislation was amended to impose a fixed waiting period of considerable length upon persons entering Australia with a clear purpose of exempting those persons from social security benefits. Events that occurred prior to arrival in Australia must be exempted when considering change because those circumstances are "far less susceptible to objective confirmation by the Secretary" (refer applicant's written submissions at paragraph 7). Additionally it was put that in the event that the Department of Social Security was required to consider events outside Australia prior to a person's departure that there would be a "substantial potential to defeat the purpose of the legislation". In urging us to adopt a construction of this type Ms Mortimer submitted that we should not follow another decision of the Tribunal President in Re Chelechkov & Department of Social Security (1998) 26 AAR 321. It was submitted that what must be substantial is the change in the circumstances not the circumstances alone. On this construction there must be an examination of the respondent's circumstances within Australia only and then a determination of whether there had been a change in his circumstances and if so whether that change is or has been substantial. Additionally it was put that an examination of those circumstances must be objective. It will not depend, according to Ms Mortimer, upon acceptance of a person's own assessment or perception about their changed circumstances. Accordingly the applicant submitted that the realisation that previously held expectations were unrealistic of the life in Australia would not permit a decision maker to engage in a comparison of circumstances so as to determine whether there has been any change which is substantial. A situation of this type - which it was submitted occurred in the case of Mr Seshachalam - is to be contrasted with the circumstances of a person who was subjected to misrepresentation or misinformation prior to arrival in Australia and who, upon arrival, realised that they have been the victim of circumstances which could be found to be a change and which is substantial. By way of example Ms Mortimer put forward a situation where a person is "recruited" to Australia upon misinformation or misrepresentation that employment would be obtained. If after a short period of time the recruiting agency notifies that employment will not be available the relevant "event" - which occurs within Australia - is the event of notification that no job would be made available. It is the circumstances before and after that event which are to be considered so as to determine whether there has been a change in circumstances which is substantial. Significantly, so far as the applicant's case is concerned, those circumstances and the "event" must occur within Australia. In the circumstances of this example it would not be difficult as Ms Mortimer submitted to demonstrate that the change has been substantial and is beyond the persons control.

65. In the circumstances of the above analysis it was submitted that there has been no event which has occurred within Australia permitting the Tribunal to compare Mr Seshachalam's circumstances. That is to say, his circumstances in Australia have remained "essentially the same since he arrived; almost since the day of his arrival he and his family have had insufficient funds to support themselves".

66. With respect to the evidence of Mr Thoener and Mr Smyrk it was put that Mr Seshachalam held unrealistic expectations and an optimism which was not borne out by the contents of documents and representations made to him by High Commission officers. It was said that the respondent took "few precautions" and he placed unreasonable and naive reliance on information that he had obtained but which on reflection was very scant. It was submitted that Mr Seshachalam was made aware of the risks of migrating to Australia, including the cost of living, the difficulty securing employment and general unavailability of social security benefits. This was set against a background of Mr Seshachalam being an intelligent person with tertiary qualifications having a good command of spoken and written english. We were urged to find that the respondent had a poor knowledge of Australia, had unrealistic expectations and insufficient funds. Mr Seshachalam was aware of the two year waiting period to qualify for benefit as was demonstrated by the various documents he received prior to migration and acknowledged in his evidence.

67. In all of the circumstances and upon the submissions of Ms Mortimer with respect to the manner in which we should construct ss.(7) it was submitted that there was no substantial change in Mr Seshachalam's circumstances that were beyond his control

The Respondent

68. Mr Risstrom on behalf of Mr Seshachalam submitted that special benefits is a "form of safety net payment". He submitted that the present case demonstrated an entitlement to special benefits highlighting the "safety net aspect of the legislation". It was noted that Mr Seshachalam in fact applied twice to migrate to Australia and on each occasion satisfied relevant medical and police clearances. It was noted that at the time the first application was made the two year waiting period before qualification for benefit did not apply.

69. Mr Risstrom submitted that the construction of ss7 as preferred by Ms Mortimer should be rejected. He said there was no warrant for drawing any implication or innuendo from the wording of the sub-section and further submitted that a comparison of circumstances so as to determine whether there has been any substantial change should not be confined only to events which occurred after arrival in Australia.

70. Mr Seshachalam, it was submitted, did suffer from stress consequent upon his arrival in Australia. It was submitted that he made numerous enquiries in India before migration and had "gone to great lengths" to secure information from what can be considered a delegate of the Australian Government, which he said was unreliable. He highlighted the respondent's incapacity to make telephone calls to Australia because of the prohibitive cost and noted that the telephone numbers advertised on Social Security brochures available in the High Commission office were available only to persons ringing within Australia. Mr Risstrom submitted that the applicant's ability to obtain useful information was in any event limited because of being unable to secure any more than five days leave from his employer and he noted also that four days of that period had been taken up by travel. It was noted also that the applicant's available funds in India were eroded by having to submit a migration application on a second occasion involving prohibitive costs of medical examinations. Despite information generally being limited Mr Seshachalam made diligent and broad enquiries from available sources. It was conceded that his client was aware that a visa approval did not in return guarantee employment nor an acceptance of his qualifications however it was noted that Mr Seshachalam did pay a membership fee to the Institute of Engineers in Australia in order that he might be in a better position to secure employment. It was not however until migration to Australia that Mr Seshachalam became aware of the significance of industry reducing its activities in December and January and the significance also of the absence of local industry experience. Despite these hardships it was submitted that Mr Seshachalam made many job enquiries and attended many interviews.

71. He submitted Mr Seshachalam was not "wilfully blind" and to this day continues to make job applications. Despite this he has needed medical treatment for stress, sleeplessness, headaches, backache and depression. There was no evidence he said of the need to undertake medical treatment for any of these conditions whilst he was living in India. Whilst it was acknowledged that persons might ask the question of Mr Seshachalam of why would he leave secure employment in India, no innuendo or inference should be drawn against him nor should it "negate a persons decision to come to Australia".

72. Mr Risstrom relied on the decision in Re Zoarder with respect to the reduction in a person's capacity to communicate and impress prospective employers when suffering from stress.

Reply

73. Ms Mortimer said that the effect of the construction upon ss.(7) as advanced by Mr Risstrom would be that any newly arrived migrant who was unable to find employment would qualify for special benefit. A construction of that type she said would entirely defeat the legislation and its purpose.

74. She dismissed Re Zoarder as being irrelevant because Mr Zoarder had a diagnosed condition of stress, whereas Mr Seshachalam did not. In any event there was no evidence that his depression interfered with his capacity to seek employment.

75. It was acknowledged that the program at Box Hill TAFE being dissolved probably amounted to a circumstance which was a substantial change and beyond his control yet his circumstances before and after the dissolution of that club were the same. Accordingly there was no change in his circumstances.

76. Ms Mortimer acknowledged also a submission by Mr Risstrom that a recent decision of the Tribunal in Re Shaikh and Department of Social Security (AAT 12785, 8 April 1998) contains references to the quality of advice given by Australian Consulates overseas. The Tribunal in any event in that application had decided that the applicant's circumstances had changed after he had made his application to the Department and in those circumstances the changed circumstances were beyond the ambit of review. She noted also that any reference to inadequacy of advice from the Australian consulate did not affect Mr Shaikh's decision to migrate to Australia.

Conclusion & Reasons For Decision

77. The present application follows a number of applications previously heard by this Tribunal with respect to the operation of s.739A of the Social Security Act. More particularly the decisions reflect some controversy as to when a "substantial change in circumstances" could occur (that is before or after arrival in Australia) and what is intended to be meant by the word "control" as it appears within ss.(7). Principally the decisions of the Tribunal commenced with a decision of the President in Re Chelechkov (reported at (1998) 26 AAR 231). Contained in the same reports are summaries of the decisions in Re Secara at page 334, and Re Department of Social Security and Fomin (AAT 12703 12 March 1998) at p. 337. Another decision of the President delivered on the same day as Re Chelechkov was Re Zoarder, followed by Re Clemence and Secretary, Department of Social Security (AAT 13223, 28 August 1998). Thereafter the Tribunal has made other decisions upon these issues which to our knowledge remain unreported, mainly Re Tadros and Secretary, Department of Social Security (AAT 12649, 26 February 1998); Re Secretary, Department of Social Security and Kaur (AAT 12667, 2 March 1998); Re Shaikh and a further decision of the President in Re Department of Social Security and Lugovskoy (AAT 13058, 3 July 1998).

78. Although the hearing of the present application concluded on 6 August 1998 we decided to defer delivery of this decision pending the hearing in the Federal Court of an appeal against the decision in Re Secara. A Full Federal Court comprising Von Doussa, O'Loughlin and Mansfield JJ, decided that appeal on 26 November 1998. To our knowledge that decision remains unreported. For the purposes of this decision we have referred to a copy of the decision of their Honours as has been published electronically by "Austlii". That decision may be found at HTTP://www.austlii.edu.au/au/cases/cth/federal.

79. In the present application, having sat through three days of evidence and become intimately aware of the respondent's circumstances and those of his family we cannot escape the irony that this country which the respondent believed would offer him so much and improve his standard and quality of living has imposed near economic destitution, uncertainty and an overwhelming sense of hopelessness. To the applicant's secretary's credit it has been decided to continue to pay benefit to the respondent pending the decision being delivered by us. By reason of the decision that we will ultimately make, those benefits will end. We are not aware whether the respondent or his wife (or both) have secured any employment since the last day of hearing. If they have not the remainder of the two year waiting period within Australia (due to expire in December 1999) will continue to offer nothing by way of economic security nor relieve them from what will undoubtably be near destitute circumstances.

80. On the one hand it might be said that these circumstances are a consequence of the applicant's decision to migrate to Australia with his wife and family without having made more diligent enquiries or arriving with greater assets. A conclusion of that type only would be uncharitable and uncaring. One remarkable feature of having read the decisions above is the apparent poor quality or in some cases absence of documented information that may be made available by consular officials in a number of overseas countries. The above decisions arose out of applications made for visas at Australian High Commissions or Consulates in Moscow, Egypt, India, Romania and Pakistan. Consular Officials did not answer mail made by visa applicants and the information made available was usually only confined to Australian Newspapers or magazines, telephone books and a social security wall chart. As we heard in the present application information was specifically not given by the High Commission in India of employment opportunities or the anticipated cost of living in Australia. Whilst it is true that consular officials are not real estate or employment agents we would have thought that documented information concerning job opportunities and estimates of the cost of living in Australia could have been provided. Indeed we were astounded having heard the evidence of Mr Smyrk that a "rule of thumb" policy of the High Commission in India that the cost of living in an Australian capital city would be $250 per week. If that sum includes the cost of rental accommodation for a family of four, we would like to know where.

81. We acknowledge that consular officials will largely be powerless to dampen an intending visa applicant's expectations of a better lifestyle than that of his native country, yet we cannot escape the conclusion that had more information or better quality information been made available to intending applicants, some of the persons who have unfortunately become parties to proceedings in this Tribunal would not have left their native country.

82. It is too late of course to reverse the decision made with respect to Mr Seshachalam and his family. However we would hope that no other person who arrives in Australia will have to endure the perilous economic circumstances to which he and his family have been exposed and will, subject to employment opportunities, remain exposed until December of this year.

83. The Full Court decision in Re Secara comprehensively deals with the areas of uncertainty evident in earlier Tribunal decisions as to at what point in time changed circumstances should be considered and what is intended to be meant also by the words "change" and "control".

84. Ms Mortimer submitted that the change in a person's circumstances can only be considered after arrival in Australia. Mansfield J, who delivered the decision on behalf of the Federal Court, agreed with the conclusions of Mathews J in Re Chelechkov. In reaching this conclusion the submission of Ms Mortimer as to the consideration of circumstances only within Australia as constituting a change of circumstance has no foundation.

85. In Re Chelechkov at p328-330, Her Honour said, when discussing this issue:

"It will be a question of fact in each case as to whether, at the time of the change relied upon under sub-section 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."

Mansfield J. in Re Secara at p. 11 stated:

"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. I do not see any reason in logic or in fairness why a temporal limitation by reference to the person's arrival in Australia should be specified".

86. His Honour then gave an example of a person migrating to Australia whom had secured employment but who upon arrival learnt that the employer had ceased to trade. His Honour said that if the intending migrant learnt at a point in time when he/she was irrevocably committed to migration that the employer had ceased to trade there was at that point in time a change in circumstance. It is to be noted that that point in time occurred not only before arrival in Australia but whilst the person remained in their native country.

87. His Honour continued to discuss this concept at page 11 as follows:

"In my judgment, the point at which in a sensible and realistic way it can be said that the person irrevocably committed to migrating to Australia marks one point in time from which s 739A(7) may operate. Earlier than that point, as Matthews J pointed out, any financial adversity in Australia due to a change of circumstances may well not be attributable to the change but due to the decision to migrate notwithstanding the change. I do not wish to be taken as indicating that there will be no cases in which a change in circumstances which occurs before an intending migrant irrevocably commits to migration to Australia may not constitute a relevant change in circumstances for the purposes of s 739A(7). One can posit, by way of example, the employment arrangement assumed above where the proposed employer, unbeknown to the migrant, ceases trading before that person irrevocably commits to migration. It may be that, in such a case, the verb "suffers" may indicate that it is the time when the intending migrant first learns of that circumstance in relation to the time when there is an irrevocable commitment to migration which is the critical point. It is sufficient in my view to indicate that s 739A(7) does not require as a matter of law that the event giving rise to or contributing to the "change in circumstances" must occur after the intending migrant has arrived in Australia. It will then be a matter of applying s 739A(7) to the particular facts before the relevant decision maker."

88. His Honour then went on to discuss the concept of "control" and the relevance of examining a person's expectations. His Honour then posed the question (at p. 14):

"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)?"

Furthermore, at pages 14 and 15, His Honour comprehensively analysed the operation of s.739A and specifically ss.(7) as follows:

"The intention of the amending Act in introducing the newly arrived resident's waiting period is clear enough. It does not require paraphrasing. Section 739A(7) then is intended to relieve a person recently arrived into Australia from the consequences of the application of that waiting period in certain circumstances. It does not operate as a transitional provision. It operates on all persons who have arrived into Australia after 4 March 1997. It 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 SS 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 SS 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 SS 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. There are some circumstances where it is easy to discern its appropriate operation, such as unexpected severe illness, serious accident, or loss of employment. It is clear that in such circumstances the legislative policy is to permit the affected person to pursue benefits under the SS Act before the newly arrived resident's waiting period has expired. Those circumstances will reflect that it is no longer appropriate to oblige the newly arrived person to provide self support for two years. The two elements which the events or matters constituting the changed circumstances must satisfy are first that the events or matters must be "substantial", that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon, and secondly that the events or matters be beyond the person's control.

In identifying eligible events or matters as potentially falling within the description "change in circumstances", in my view there is no clear or useful line necessarily to be drawn between a person's expectations and objective events. That is because, in a practical sense, there may be only a difference of degree between them. An intending migrant may have sought to make arrangements for employment upon arrival within Australia. Those arrangements may result in an enforceable contract of employment, or an offer of employment, or a statement of intention to employ the particular person, or a statement from a particular employer about that employer's intentions to offer employment to the prospective migrant specifically or to a number of persons with the prospective migrant's skills and for which that person would be likely to be accepted for employment. It is possible to envisage a spectrum of certainty or uncertainty, and from the intending migrant's viewpoint, to describe the arrangement as an expectation of employment of greater or less great strength. Like examples could be generated in relation to the arrangements an intending migrant has put in place or negotiated for support from family and friends upon arrival in Australia during the newly arrived resident's waiting period. Similar examples could be generated with respect to other matters. It is unnecessary to do so. Once it is accepted, however, that s 739A(7) is capable of responding to changes in circumstances where the pre-existing circumstance is not a matter of absolute certainty but may be the prospect of something happening in the future, then in my judgment it is not helpful to exclude from qualifying changes in circumstances those which may attract the description "changes in expectations". I have indicated above that the pre-existing circumstances to which the change occurs need not be truly certain future events. They may include the prospect of something happening in the future. 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. Federal Commissioner for Taxation v Arklay (1989) 22 FCR 298 was decided in respect of a different phrase "circumstances existed by reason of which it was reasonable to expect" in s 82AAS(2)(a) of the Income Tax Assessment Act 1936 (Cth). Nevertheless, in my view, the above approach is consistent with the approach of the Full Court (Sheppard, Wilcox and Hartigan JJ) in that case in particular at 303. Accordingly, I do not think that there is any necessary dividing line to be drawn which necessarily excludes 'expectations' from being considered in an appropriate case as providing a foundation for a substantial change in circumstances. In my judgment, the correct proposition is that it will only be by reference to the particular facts and matters pertaining to a particular applicant that it will be possible to determine whether there has been, in terms of s 739A(7), a "change in circumstances" and whether that change is substantial".

89. In the present application, Mr Seshachalam did not have work secured in Australia before he decided to emigrate. He had not applied for any work in Australia and had not sought assistance through any Australian based recruitment agency. He was aware of a 10% rate of unemployment in Australia and it was he who decided to leave his salaried employment in India. Similarly he had not made any application for employment with respect to any job vacancy he observed in the Newspapers made available to him at the High Commission in New Delhi. He was also aware that the institute of engineers to whom he paid monies for membership cautioned him against readily locating employment.

90. Consequently at the time he left India he was unemployed. Upon arrival in Australia and subsequently he has largely remained unemployed. As a consequence of resigning his employment in India he lost the employer provided housing. It was not until approximately July 1998 that he was able to obtain private accommodation in Australia. Insofar as employment and accommodation issues are concerned there was no difference between his circumstances in India at the time of emigration to the circumstances that he endured after his arrival in Australia. Principally the economic insecurity to which he was initially and subsequently exposed was a consequence of his decision to migrate.

91. We could not find as a fact that the respondent had a secure or informed knowledge of employment conditions within Australia such that he would be entitled to assume that employment would become readily available to him. Of course with hindsight no-one would ever make a mistake, yet it must be said that the enquiries made by the respondent of employment opportunities in Australia were scant and the decision to give up salaried employment and accommodation in India was premature. The applicant knew of the two year waiting period within Australia and in those circumstances he must have been aware that he would be required to support his family without the assistance of social security benefits within that period.

92. 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.

93. In all of the circumstances the decision under review must be set aside and in substitution therefore the original decision made by the applicant dated 4 March 1998 to reject the application for special benefit should be restored.

I certify that this and the thirty-three preceding pages are a true copy of the decision and reasons for decision herein of Mr J Handley, Senior Member and Dr C Re, Member.

Signed: ..Carolyn Irons ....................................................

Secretary

Dates of Hearing 15 July 1998

5 August 1998

6 August 1998

Date of Decision 5 February 1999

Counsel for the Applicant Ms Mortimer

Solicitor for the Applicant Australian Government Solicitor

Counsel for the Respondent Mr Risstrom

Solicitor for the Respondent Eastern Community Legal Centre Inc.