Roberts and Secretary, Department of Family and Community Services [1999] AATA 779 (20 October 1999)

Last Updated: 1 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/97

GENERAL ADMINISTRATIVE DIVISION )

Re PATRICIA ANN ROBERTS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 20 October 1999

Place Hobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Social Security Act 1991 - Reciprocal Agreement on Social Security between Australia and Canada - Article 6 - qualifying residence.

REASONS FOR DECISION

20 October 1999 Ms A F Cunningham (Part-time Member)

1. The applicant has sought the review of a decision made by an authorised review officer on 1 February 1999 which affirmed a decision of a Commonwealth Service Delivery Agency (Centrelink) delegate of the Secretary of the Department of Family and Community Services on 7 December 1998 which rejected the applicant's claim for a pension.

2. Both parties agreed to the Tribunal deciding the appeal on the basis of the material before it as the applicant currently resides in Canada. The T documents were submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.

3. The applicant originally made a claim for a widow pension on 22 June 1998 however as this type of pension was abolished as from 20 March 1997, the claim was treated as a claim for a parenting payment single as the applicant had dependent children under the age of 16 years at the time. However the claim was subsequently rejected on the basis that the information supplied indicated that the applicant had only accumulated 9 months working life residence in Australia.

4. The history of the applicant's residence in Australia did not appear to be in dispute and is confirmed by copies of the applicant's passport and citizenship documents as contained in the T documents at T6 to T10.

5. The evidence before the Tribunal confirms that the applicant arrived in Australia on a temporary visa on 5 May 1982, was granted permanent residence on 2 November 1983 and left Australia on 15 July 1984. The T documents also reveal that the applicant married on 20 October 1982 immediately after which she applied for permanent residency which was not granted until 2 November 1983. The applicant's daughter Rebecca was born on 9 February 1983.

6. The applicant's appeal to this Tribunal appeared to be based on the provisions of Article 6 of the International Agreement between Australia and Canada contained in Schedule 5 of the Social Security Act 1991 ("the Act") which provides as follows:-

Article 6: "Totalisation in Relation to Australian Benefits

1. Where a person has been an Australian resident for a period that is:

(a) less than the period as an Australian resident required to qualify him or her under the legislation of Australia for a benefit; and

(b) equal to a greater than the minimum period identified in accordance with paragraph 6 for that person,

but has accumulated both a period of residence in Australia and a Canadian creditable period which, when added together, are equal to or greater than the minimum period required for qualification for that benefit by the legislation of Australia, that Canadian creditable period shall be deemed, for the purposes of a claim for that benefit, to be a period in which that person was an Australian resident".

7. It is the applicant's contention that under the provisions of this paragraph she is entitled to add together both her period of residence in Australia and Canadian creditable period in order to qualify under the residence provisions for the pension claim. The applicant in previous letters of appeal to the Social Security Appeals Tribunal also referred that Tribunal to the provisions subparagraph 1(a) of Article 6,. However what the applicant has failed to take account of is the word "and" occurring after the semi-colon in subparagraph (a), which means that subparagraph (a) cannot be read in isolation to subparagraph (b). In other words the applicant must also meet the requirements of subparagraph (b) requiring Australian residence which is equal to or greater than the minimum period prescribed in paragraph 6, which in the applicant's case is 1 year. It would appear that the purpose of Article 6 is to enable qualification for a benefit under Australian legislation, for instance where a 2 year residence requirement is stipulated.

8. There being no dispute on the evidence before the Tribunal that the applicant was not "an Australian resident" for the required period of 1 year under the provisions of paragraph 6 of Article 6 of the Agreement and there being no other relevant provisions in that Article that can assist the applicant in meeting the required residence period, the applicant's appeal must accordingly be dismissed and the decision under review affirmed.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing Matter decided on the papers.

Date of Decision 20 October 1999