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Administrative Appeals Tribunal of Australia |
Last Updated: 13 March 2000
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/559
GENERAL ADMINISTRATIVE DIVISION )
Re FARIS ALLAHWERDI
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
Tribunal Ms S M Bullock, Member
Date 17 January 2000
Place Sydney
Decision The decision under review is affirmed.
(Sgd) SM Bullock
..............................................
Member
CATCHWORDS
SOCIAL SECURITY - Special Benefit - newly arrived resident's waiting period - substantial change in circumstances beyond the person's control - hardship - whether the difference between a migrant's expectations and reality constitute a change in circumstances - financial difficulty.
Social Security Act 1991 - ss 729, 732, and 739A
Re Secretary, 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 Secretary, Department of Social Security and Tadros (AAT 12649, 26 February 1998)
Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481
Ms S M Bullock, Member
1. This is an Application for Review by Mr Faris Allahwerdi ("the Applicant") to the Administrative Appeals Tribunal ("the Tribunal") of a decision made by the Social Security Appeals Tribunal ("the SSAT") on 17 March 1999 (T2) that Mr Allahwerdi was not qualified to receive a Special Benefit. This decision affirmed a decision of an Authorised Review Officer ("an ARO") of the Department of Family and Community Services made on 8 January 1999, that Mr Allahwerdi was not eligible for Special Benefit because any financial hardship suffered by him was not a result of any change in circumstances, but rather because Mr Allahwerdi came to Australia with inadequate funds for his family's support (T17). The ARO's decision affirmed a decision of a Delegate of the Department of Family and Community Services made on 24 December 1998.
2. A hearing was held in Sydney on 13 October 1999. Mr Allahwerdi represented himself and provided oral evidence. The Respondent, the Secretary, Department of Family and Community Services ("the Department"), was represented by Ms C Collis, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents T1-T17) and the following exhibits:
Exhibit No A1 A2 A3 A4 A5 A6 A7 A8 A9 A10 R1 R2 Description Letter to Dr F Allahwerdi from Mr M Fisher, Manager - Human Resource Unit, Launceston General Hospital & Northern Ambulance Letter to Dr F Allahwerdi from Dr P Arvier, Director of Emergency Services, North West Regional Hospital Letter to Dr F Allahwerdi from Ms L McFayden, CME/Locum Project Manager, NSW Rural Doctors Network Letter to Dr F Allahwerdi from Dr D Douglas, Director of Clinical Services, Kempsey District Hospital Letter to Dr F Allahwerdi from Dr E J Kertesz, Director of Accident and Emergency, Lithgow Health Service Letter to Dr F Allahwerdi from Dr H Duyverman, Chief Executive Officer, South Australian Postgraduate Medical Education Association Inc Letter to Dr F Allahwerdi from Ms L McFayden, Project Manager - CME and locums, NSW Rural Doctors Network Letter to Dr F Allahwerdi from Ms V Piper, Medical Recruitment, Royal Darwin Hospital Letter to Dr F Allahwerdi from Dr P Finlayson, Director of Medical Services, New England Health Service Payslip, Kansanto Pty Ltd, for one week up to 7 September 1999 Copy of Ms S Allahwerdi's payment screen Respondent's Statement of Facts and Contentions Date 1 February 1999 1 February 1999 7 June 1999 9 June 1999 6 July 1999 17 September 1999 16 September 1999 13 September 1999 29 September 1999 8 September 1999 11 October 1999 12 October 1999
ISSUE
3. The issue to be determined in this matter is whether or not Mr Allahwerdi is eligible to receive a Special Benefit.
LEGISLATION
4. Special Benefit is a type of income security provided by the Department as a "safety net". It is a payment of last resort made to people who are ineligible for other forms of Social Security payment. Special Benefit is provided to enable a basic level of living. Special Benefit is covered by subsection 729(1) and (2) of the Social Security Act 1991 ("the Act"). Subsection 729(1) provides:
"729(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period."
5. Subsection 729(2) of the Act provides that the Secretary may, in his or her discretion, determine that a Special Benefit should be granted to a person if certain conditions are fulfilled. Paragraphs (a) to (db) set out conditions relating to the non-receipt of other types of pensions. Paragraph (e) provides as follows:
"(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason;"
"732(1) Even though a person might otherwise be qualified for a special benefit, the benefit may not be payable to the person because:
(a) the value of the person's assets exceeds the assets value limit (see sections 733 and 734); or
(aa) the person has not provided a tax file number for the person (see section 734A ) or the person's partner (see section 734B); or
(b) the person is receiving another income support payment (see section 735); or
(c) the person fails to comply with a requirement that the person:
(i) attend a medical examination; or
(ii) receive treatment; or
(iii) undertake a training course; or
(iv) do suitable work;
as required by section 736; or
(d) the person is a full-time student (see section 737) or is receiving a payment under certain educational schemes (see section 738); or
(da) the person is subject to a newly arrived resident's waiting period and that period has not ended (see section 739A); or
(e) the person is in gaol (see Part 3.13); or
(f) the person has received a compensation payment (see Part 3.14)."
7. Section 739A of the Act was inserted into the Act by the Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Act 1997 which came into effect on 4 March 1997. The specific amendment relevant to Mr Allahwerdi's case is that a newly arrived resident's waiting period was extended from 26 weeks to two years. As relevant, subsection 739A(1) states:
"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."
8. Subsection 739A(2) of the Act states:
(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."
9. Subsection 739A(3) of the Act states:
"If:
(a) a person is subject to a newly arrived resident's waiting period; and
(b) before, on or after the commencement of this subsection, the person applies for:
(i) a subclass 820 visa--Extended eligibility (spouse); or
(ii) a subclass 826 visa--Interdependency; or
(iii) a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph;
the waiting period:
(c) starts on the day on which the person applied for that visa; and
(d) ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day."
10. Accordingly, Mr Allahwerdi, in the ordinary course, is precluded from being eligible for Special Benefit until 11 August 2000. However, there is one exception to this restriction so far as Mr Allahwerdi's situation is concerned and it is found in subsection 739A(7) of the Act which states:
"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."
BACKGROUND
11. The following information is provided by way of background and the facts contained herein are not in dispute:
* Mr Allahwerdi was born on 5 October 1956 in Iraq. He studied six years in Primary School, six years Secondary School and six years at University, obtaining a Medical Degree with a major in Pharmacology. Mr Allahwerdi had commenced a PHD, but did not complete this.
* Mr Allahwerdi worked in a private clinic as a General Practitioner in Baghdad from about 1985 to 1995. He left Iraq to go to Jordan as a tutor in pharmacology.
* In 1996, Mr Allahwerdi relocated to Holland, to Delft, where he worked as a Cardiologist.
* On 11 August 1998, Mr Allahwerdi migrated to Australia with his wife and two children, Sandra, born on 24 September 1994, and Fernand, born on 15 March 1998 (T3, T10). Mr Allahwerdi became a permanent resident of Australia on 21 April 1998 (T4).
* Mr Allahwerdi applied for employment at the Mater Misericordiae Adult Hospital, South Brisbane, but his application was rejected on 17 September 1998 because he had no status with the Australian Medical Council (T6).
* Mr Allahwerdi applied for employment as a doctor at the Goulburn Valley Base Hospital, however, this application was rejected on 12 November 1998 (T7).
* Mrs Allahwerdi, also known as Dr S Abdul-Nour, made an application to the Australian Medical Council to become registered as a doctor. She received advice on 14 August 1998, of the process involved. The requirements for Dr Abdul-Nour and also Mr Allahwerdi are:
"...
In order to complete the eligibility requirements to sit the first section of the AMC [Australian Medical Council] examination, the Multiple-Choice-Question (MCQ) examination, you must first sit and pass the Occupational English Test (OET) or equivalent or be granted an exemption from the OET.
...
The MCQ examination comprises two, three-hour papers each containing 100 multiple choice questions, conducted on one day. As you have not yet passed the OET, the next MCQ examination for which you would be elegible to apply is expected to be held on Tuesday 13 April 1999 with a closing date of Friday 5 February 1999. ...
As from 1 January 1998 candidates who commence the AMC examination will have five (5) years in which to complete the process and obtain the AMC Certificate. ..." (T5)
The fee for the Multiple-Choice-Question examination increased to $1,150.00 from 1 January 1999.
* On 26 November 1998, the Medical Council of Australia wrote to Mr Allahwerdi about his application for assessment of his medical qualifications and provided details of the Multiple-Choice-Question Examination to be conducted on 13 April 1999 and 12 October 1999 (T8).
* On 22 December 1998, Mr Allahwerdi applied for Special Benefit (T3).
* On 24 December 1998, a Departmental Delegate rejected Mr Allahwerdi's claim for Special Benefit. Mr Allahwerdi was later assessed as eligible for Newstart Allowance commencing 8 August 2000 (T12). On 24 December 1998, a copy of a letter was lodged with Centrelink, which had been sent to Mr Allahwerdi, then living in Delft, from the Australian Embassy in The Hague. The immigration section of the Embassy of Australia advised Mr Allahwerdi of a number of things concerning the grant of an Australian visa. Mr Allahwerdi was informed he had been granted a subclass 105 visa with the condition that he must first enter Australia no later than 5 September 1998 (T11). Specific advice was provided in the letter about issues such as "Working in Australia", "Social Security payments and Austudy educational assistance" and other information in relation to change of circumstances, Australian Citizenship and the provision of incorrect information.
Mr Allahwerdi was advised by the Embassy, in relation to work, that:
"...
Your visa allows you to work in Australia. However, you are reminded that the visa provides no guarantee of employment in Australia, nor does acceptance of your qualifications for migration purposes. Employment opportunities in some occupations are limited. Registration and licensing requirements for particular occupations vary between States and Territories and may be amended from time to time.
Social Security payments and Austudy educational assistance.
Most migrants must wait two years before they are eligbile (sic) to receive certain social security payments, including unemployment payments. Newly arrived migrants may only claim special benefit if, after arriving in Australia, their circumstances change for reasons beyond their control, resulting in severe hardship.
[please note: you are not a refugee]
...
If you have children you may be immediately eligible for family payments.
For further information about social security payment you should contact Centrelink, the agency that makes social security payments, by telephone on 13 24 68 or Centrelink's Multilingual Telephone Information Service on 13 1202 from anywhere in Australia.
...
I have enclosed an information sheet on the two year wiating (sic) period for Social Security payments in Australia." (T11)
* On 7 January 1999, Mr Allahwerdi requested a reconsideration of the Departmental Delegate's decision not to grant a Special Benefit. Mr Allahwerdi wrote that his brother-in-law, who sponsored him to Australia, was no longer able to support Mr Allahwerdi and his family and that he was in severe financial hardship (T13). The Delegate affirmed the decision and Mr Allahwerdi was informed of this by letter of 7 January 1999 (T15). On 7 January 1999, Mr Allahwerdi requested a review by an ARO.
* In a File Note of a telephone conversation between the ARO and Mr Allahwerdi on 8 January 1999, the ARO wrote:
"- acknowledges he was told by the Australian Immigration Authorities that he would have difficulty getting professional work in Australia and that he could not get income support from Centrelink for 2 years
- says he is in hardship and he cannot give his family the standard of living he would like to give them
- he works 2 days per week ... and gets $200 per week gross
- says the person who sponsored him to Australia can't look after him
- gets FA for the children" (T16)
* On 8 January 1999, the ARO affirmed the decision to reject Mr Allahwerdi's claim for Special Benefit. The ARO noted that Mr Allahwerdi was advised by the Australian Authorities in writing of the waiting period but, in spite of this information given to him, Mr Allahwerdi came to Australia with no funds for the support of his family for the first two years. The ARO was satisfied that Mr Allahwerdi's available funds had not been depleted due to a substantial change in circumstances beyond his control that occurred after his arrival in Australia. The ARO noted that Mr Allahwerdi came to Australia without adequate funds for his support or pre-arranged employment. The ARO concluded that Mr Allahwerdi's financial hardship was not as a result of any change in circumstances, but rather because he came to Australia with inadequate funds for his and his family's support (T17).
* Mr Allahwerdi appealed to the SSAT on 5 February 1999, arguing that the ARO's decision was unjust. The ARO's decision was affirmed by the SSAT on 17 March 1999 (T2).
* Mr Allahwerdi lodged an Application for Review to the Tribunal, in writing, on 16 April 1999. Mr Allahwerdi stated that he found the SSAT's decision was unfair and he believed he had explained to the SSAT the difficulties he faced, including his inability to afford minimum financial support for his family (T1).
EVIDENCE OF MR ALLAHWERDI
12. Mr Allahwerdi and his wife and family had left Iraq because he found he could no longer work as he wished in Iraq. The President of Iraq's son was the head of the medical college to which Mr Allahwerdi was attached and Mr Allahwerdi stated that the director interfered with all aspects of his work. Mr Allahwerdi explained he could not practice medicine as he thought he should, hence his desire to leave the country. Mr Allahwerdi told the Tribunal that all of his assets, which were at that time considerable, were taken by the Iraqi authorities. In Iraq, Mr Allahwerdi and his family had lived a very "affluent lifestyle". Mr Allahwerdi stated that in Iraq the political system was such as to preclude him working elsewhere other than in that practice. "The government told people where they should work and that was it".
13. Mr Allahwerdi had spoken to his brother-in-law about coming to Australia, but had not discussed working as a doctor. Mr Allahwerdi's brother-in-law is a washing-machine mechanic. Nor did Mr Allahwerdi discuss with his brother-in-law any details about Social Security payments and his eligibility or otherwise for income support from the government.
14. Mr Allahwerdi travelled first from Iraq to Jordon and then on to Holland. It was in Holland that his application to migrate to Australia was approved. Mr Allahwerdi had no assets by this time. Mr Allahwerdi told the Tribunal that he was considered a refugee in Holland and was given approximately $400.00 by the "International Organisation for Migration", signing a declaration that he would not return to Holland.
15. Mr Allahwerdi told the Tribunal that before coming to Australia, he had been given official advice from the Australian Embassy about the two year waiting period for Social Security payments and also about the possible difficulties in obtaining formal recognition of overseas qualification and registration in his particular occupation of medicine. Despite this knowledge, Mr Allahwerdi stated that he decided to come to Australia. Mr Allahwerdi explained that, while he did not deny receiving and understanding this official advice, he had also received advice from two doctors in Australia who were friends of his. This advice from his medical friends was that it was not difficult to obtain positions as a medical practitioner in states other than New South Wales and that this could be done without an exam. Mr Allahwerdi conceded to the Tribunal that it was "risky" to follow this advice, but he had decided to take the chance. Mr Allahwerdi told the Tribunal that he did not seek any prior information from the Australian Medical Council about recognition of overseas qualifications and registration as a doctor in Australia, nor did he make any enquiries of the Department of Family and Community Services or Centrelink in relation to income support.
16. Mr Allahwerdi explained to the Tribunal that in order to qualify as a doctor in Australia, one has to firstly pass an Occupational English Test, which he himself passed in January 1999. The next requirement is passing a multiple choice question examination followed by a clinical examination. Mr Allahwerdi was not able to gain a place to sit the examination in late 1999 but expects to be able to undertake the next examination in either January or February of 2000. He has also applied to do the test in Melbourne and Brisbane as well as Sydney, to try and maximise his chances of undertaking the test as soon as possible.
17. Mr Allahwerdi stated that he has applied for medical practitioners' positions in Canberra and Tasmania, through the NSW Rural Doctors Network, through Kempsey Hospital, Lithgow Hospital, Royal Darwin Hospital, Tamworth Base Hospital and in South Australia (Exhibits A1 to A9). Mr Allahwerdi's employment seeking activity spans the period from February 1999 to 29 September 1999.
18. Mr Allahwerdi told the Tribunal that he had applied for Special Benefit because his family was not coping financially. Both he and his wife have to study in order to pass the examinations leading to their registration as a medical practitioner in Australia. Mr Allahwerdi's wife is not working, but he is employed as a venepuncturist, with Kansanto Pty Ltd. Initially, Mr Allahwerdi was employed for two days per week, but since July 1999, he has been working three days per week. Mr Allahwerdi commenced employment in this position on 8 September 1998. A pay slip for the week up to 7 September 1999, indicated that Mr Allahwerdi had earned $256.80 net. The family receives Family Payments for the two children of $314.09 per fortnight. Currently, Mr Allahwerdi and his family live in a house for which they pay rental of $125.00 per week. Mr Allahwerdi reiterated that he is not able to work any longer hours because of his need to study and also to care for the children while his wife studies. Mr Allahwerdi explained to the Tribunal that all he wants to do is to practice medicine. He has not therefore sought any non-medical employment.
19. Recently Mr Allahwerdi received advice from the NSW Rural Doctors Network that the organisation was negotiating with the NSW Health Department regarding clinical training opportunities and that if the negotiations between the State Government and the Rural Doctors Network were successful, then the Network would refer Mr Allahwerdi's resume to organisations for consideration (Exhibit A7).
20. The Tribunal was informed that initially the Allahwerdi family was assisted by Mr Allahwerdi's brother-in-law, who provided the family with a refrigerator, television, washing machine, stove and furniture. This assistance was only short term. Mr Allahwerdi stated that his brother-in-law had not signed an Assurance of Support for him, he only sponsored the family. It was never intended that the support from Mr Allahwerdi's brother-in-law would be long term and, indeed, as provided in earlier evidence, Mr Allahwerdi had not discussed the financial arrangements of his family prior to Mr Allahwerdi arriving in Australia.
21. Mr Allahwerdi stated that currently he does not owe any money and he is able to "just" feed and clothe his children. The family owns an older model car. There has been need in the past to obtain charitable financial assistance from the Fairfield Community Centre in the form of a cash advance of $50.00.
22. Mr Allahwerdi stated that he has not received any financial assistance from friends or any other family member. In terms of obtaining text books and reference material for his and his wife's study needs, Mr Allahwerdi uses the local library, hospital library or may be assisted with some materials from his friends. The Tribunal was told that while Mr Allahwerdi is not in any debt, he is very concerned that his employment is not secure and he could lose his job. Questioning of Mr Allahwerdi on this point indicated that he had not been criticised or disciplined for any poor performance at work, and that he had been successful in increasing his number of days at work. Mr Allahwerdi had received no suggestion of termination from his employer.
SUBMISSIONS
23. Mr Allahwerdi submitted that he had applied for Special Benefit because he needed to support his family. His income is very meagre and this is the only reason he applied. Mr Allahwerdi submitted that he is a proud man and found such circumstances very difficult and very different to those experienced by himself and his family in Iraq where their lifestyle was very affluent. Mr Allahwerdi stated that he does not like the idea of Special Benefit but it is "necessary". Mr Allahwerdi submitted that he wished the Tribunal to consider his case from an humanitarian point of view. In this regard, Mr Allahwerdi submitted that he did not know if his job was secure and his circumstances had changed because he had been unable, despite numerous attempts, to obtain employment. Further, Mr Allahwerdi's financial circumstances were extremely tight.
24. Ms Collis, Advocate for the Respondent, contended that the qualification criteria for Special Benefit are contained in section 729 of the Act and require that a person must be suffering hardship and unable to earn a sufficient income.
25. Although the Respondent accepted that Mr Allahwerdi had financial difficulties, he was still able to feed, clothe and accommodate his family. Mr Allahwerdi had chosen not to undertake full-time work, except as a medical practitioner, and accordingly was exercising choice in the amount of work he undertook and therefore the income he earned. There are other avenues of full-time work Mr Allahwerdi could pursue, Ms Collis contended, but noted Mr Allahwerdi's evidence that his priority was to study in order to qualify as a medical practitioner. Mr Allahwerdi is currently earning at least $200 per week and has a Family Payment of $314.09, an income which is better than many Social Security recipients, Ms Collis submitted.
26. Referring to subsection 732(1)(da) of the Act, Ms Collis submitted that Mr Allahwerdi also has no qualification for Special Benefit because he is subject to the newly arrived resident's waiting period which precludes any Social Security income support, apart from Family Allowance, until 11 August 2000. Furthermore, subsection 739A was inserted by the Social Security Legislation Amendment (Newly Arrived Resident's Waiting Period and Other Measures) Act 1997 which extended the waiting period from 26 weeks to two years.
27. Ms Collis turned to consider the ameliorating provisions contained in subsection 739A(7) of the Act which allow for a person to be exempt from the two year waiting period, if he or she has suffered a substantial change in circumstances beyond the person's control. Referring to the Second Reading Speech to the Bill concerning this provision, the then Minister for Social Security stated that Special Benefit would be subject to the two year waiting period:
"except for those situations where a migrant's circumstances have changed significantly following their arrival in Australia, and for reasons beyond their control."
28. Ms Collis submitted that case law has been especially instructive in relation to the issue of time limitation and as to what factors constitute a "substantial change". In Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481, the Federal Court determined that a change in circumstances need not have occurred after the migrant arrived in Australia. Similarly, Ms Collis submitted that in Re Secretary, Department of Social Security and Tadros (AAT 12649, 26 February 1998), the Tribunal found that the substantial change could occur before entry into Australia if the person was "irrevocably committed" to the migration process. Ms Collis wished the Tribunal to note that the inadequate funds which Mr Allahwerdi brought to Australia in the form of $400.00, was not as a result of more substantial funds being depleted as a result of the migration process or of being given inadequate information as to the cost of living in Australia, as was the situation in Re Secretary, Department of Social Security and Kaur (AAT 12667, 2 March 1998). From Mr Allahwerdi's evidence to the Tribunal, the SSAT and a letter to Mr Allahwerdi from the Australian Embassy, it was clearly the case that Mr Allahwerdi has acknowledged that he knew of circumstances likely to face him in Australia. Despite such knowledge, he had made no plans for his upkeep in Australia. Further, Mr Allahwerdi was aware of the difficulty of obtaining professional work in Australia and that he could not obtain income support from the Department for two years. The Australian Embassy had clearly informed Mr Allahwerdi that there was no guarantee of employment in Australia nor the acceptance of his medical qualification. Ms Collis contended that Mr Allahwerdi was also made aware that he was not in the exempt category of refugee nor receiving an exemption from the waiting period on humanitarian grounds. Despite this official information being provided to Mr Allahwerdi, he had ignored the advice and was committed to coming to Australia with little regard for the consequences. Ms Collis submitted that $400.00 was always going to be an unrealistic amount of money to bring to Australia to support a family of four for two years.
29. The Tribunal was referred to Re Secretary, Department of Social Security and Fomin (AAT 12703, 12 March 1998) in which Mathews J, the then President, noted:
"16. ... The immediate cause of the depletion of the respondents' funds was the fact that they were inadequate in the first place. One must then go back to ask whether the inadequacy of the funds was itself beyond their control. If a migrant brings inadequate funds into Australia because he/she has received misleading, inaccurate or inadequate information as to the cost of living here or as to some other relevant aspect of Australian life, then it could well be said to be beyond their control. But this is not the case here. The respondents were aware, or should have been, that the funds they were bringing into Australia were inadequate to last them any substantial time, given the cost of living here."
30. Ms Collis contended that Mr Allahwerdi was not only fully aware of the cost of living in Australia, but also that there was no guarantee of finance once he came here. Support for this proposition was to be found in the fact that Mr Allahwerdi's brother-in-law, who had provided initial financial assistance to the family was no longer able to assist Mr Allahwerdi in either a financial or material sense. Ms Collis emphasised that Mr Allahwerdi's brother-in-law was not an assurer, but only a sponsor.
31. Referring to Re Secretary, Department of Social Security and Lugovskoy (AAT 13058 , 3 July 1998), under the "Lugovskoy Principle", Ms Collis submitted that Mr Allahwerdi must bring more than evidence of a "mere delay" in the recognition of his overall qualifications. Mathews J in Lugovskoy (supra) stated:
"... There is no guarantee that Mrs Lugovskoy would have passed these examinations...
It is insufficient, in my view, for migrants seeking to bring themselves within subsection (7) to give evidence only of unexpected delays in recognition of overseas qualifications. ... It is possible, for example, that even with recognition of Mrs Lugovskoy's qualification, there would not be a position available for her within her qualification . . ."
32. Ms Collis submitted that a person wishing to bring him or herself within the confines of subsection 739A(7) must give evidence that the migrant's circumstances have in fact been affected by the delay. Ms Collis submitted that no such evidence was present in Mr Allahwerdi's case. Further, whilst in Secretary, Department of Social Security v Secara (supra) the Federal Court held that the difference between a migrant's expectations and the reality of life in Australia, within some cases, constitute a "change in circumstances", the facts in Mr Allahwerdi's case do not support this proposition, Ms Collis submitted.
33. In conclusion, Ms Collis submitted that Mr Allahwerdi was fully availed of all relevant information when he decided to migrate to Australia. He had made an "error of judgment" in being over confidant of obtaining work as a medical practitioner in Australia and had relied on the advice of friends, to his detriment. Mr Allahwerdi appears to have made no further enquiries as to whether his medical qualifications would be acceptable in Australia and indeed, from the moment that Mr Allahwerdi received the letter from the Australian Embassy he was, Ms Collis submitted, "on notice" not only that he would receive no welfare payment for two years but there was no guarantee of employment. Ms Collis submitted that in all these circumstances the Tribunal should affirm the decision of the SSAT.
FINDINGS
34. The Tribunal has reached a decision in this matter taking into account all the available oral and documentary evidence and by applying the statutory and case law.
35. Mr Allahwerdi was frank and cooperative in the provision of his evidence. The Tribunal considered him to be a witness of credit.
36. The Tribunal finds that Mr Allahwerdi and his wife were subject to the two year waiting period for the purposes of Special Benefit. The issue is whether the discretion can be exercised under subsection 739A(7) of the Act because of a change of circumstances beyond his control.
37. Can Mr Allahwerdi's inability to obtain a job be considered a change of circumstances? There is no dispute that Mr Allahwerdi was provided with formal and correct advice by the Australian Embassy before he migrated to Australia concerning a number of relevant matters including the time limit during which no benefit was obtainable from the Department and also the possible difficulties in obtaining professional recognition, registration and indeed employment within Australia. There is also no dispute that Mr Allahwerdi obtained advice from two friends who are medical practitioners in Australia, who had been living and working in Australia for some years. These friends had advised Mr Allahwerdi that he would have no difficulty obtaining a job as a medical practitioner within Australia in any of the States and also without having to go through the exam process. Mr Allahwerdi admitted that he relied on the friend's advice above the advice provided to him by the Australian Embassy. This, he acknowledged, was a "risky" proposition, but nevertheless he chose to pursue his entry into Australia based on this advice. The Tribunal finds that Mr Allahwerdi's decision to live in Australia was a matter of choice for Mr Allahwerdi and a risk that he was prepared to take.
38. The Embassy advice indicated clearly that no income support would be available from the Department, yet Mr Allahwerdi came to Australia with only $400.00 to support himself, his wife and two children for a period of two years. He had expected initial support from his brother-in-law which was provided, but the Tribunal finds that Mr Allahwerdi did not expect that this support would continue and was only ever going to be of short term assistance. It is clear that Mr Allahwerdi believed, to his detriment, that he would not be unemployed for very long and that he would be earning an income as a medical practitioner.
39. The Tribunal finds that Mr Allahwerdi's change in circumstances in his difficulty in obtaining employment is not a change in circumstances beyond his control. Mr Allahwerdi came to Australia with formal knowledge that it could be difficult to become registered in his chosen profession and also to find employment as a medical practitioner. Mr Allahwerdi's expectations were raised by informal advice from his friends. These circumstances were not occasioned by anything beyond his control. Mr Allahwerdi's delay and difficulty in obtaining professional registration emanated from a choice he made to accept informal advice which in fact turned out to be incorrect. The reliance on this information was not beyond Mr Allahwerdi's control and therefore cannot be considered as activating the discretion contained in subsection 739A(7) of the Act.
40. Mr Allahwerdi's financial situation is also considered by the Tribunal in terms of whether or not his difficult financial situation can be considered arising from circumstances beyond his control. It is not disputed that Mr Allahwerdi arrived in Australia with $400.00 with which to support a family of four. In the Tribunal's view, such a meagre amount of funds could barely keep the family for one week, let alone two years. Mr Allahwerdi came to Australia with inadequate funds in the context of correct and formal advice that no Social Security income support would be available for two years. Mr Allahwerdi has been successful in obtaining work and also is in receipt of Family Payments for the children. Mr Allahwerdi has chosen not to increase his hours of employment, because his priority is to study to have his medical qualification recognised as quickly as possible and the Tribunal understands this. Sympathetic as the Tribunal is, however, it finds that Mr Allahwerdi's funds on arrival in Australia were inadequate and insufficient. The question must be asked, was this inadequacy in funding arising out of a change of circumstances beyond Mr Allahwerdi's control? The Tribunal finds that the funds were inadequate in the first place and Mr Allahwerdi knew, or had cause to know, that his finances were insufficient and that there could be difficulty in him obtaining either employment or income support from the Department. The Tribunal does not consider that there is any threat of Mr Allahwerdi losing his job, he has increased his work days and has not had any disciplinary action taken against him.
41. The inadequacy of the funds bought to Australia by Mr Allahwerdi did not arise out of any misinformation or inadequate information about the circumstances he might find himself in. Mr Allahwerdi's brother-in-law was never expected to support him long term and further, Mr Allahwerdi had not discussed the financial arrangements with his brother-in-law nor had he made any enquiries of Centrelink. Mr Allahwerdi was prepared again to take a risk, arriving in Australia with such inadequate funds. The Tribunal therefore finds that Mr Allahwerdi's financial situation has not arisen out of a change of circumstances beyond his control. Mr Allahwerdi came to Australia knowing that his funds were inadequate yet chose to take the risk. As he had done in accepting the informal advice of friends concerning medical registration and employment, he exercised choice in the matter of coming to Australia with clearly insufficient funds and no provision for his and his family's future.
42. Having so found, the Tribunal does not consider that Mr Allahwerdi's inability to obtain employment as a doctor, to obtain professional registration or his financial difficulties have arisen out of any substantial change to his circumstances beyond his control and therefore, the Tribunal determines that Mr Allahwerdi is ineligible for Special Benefit.
43. Mr Allahwerdi is a highly motivated, intelligent and determined person. The Tribunal finds that he has not been misled nor provided with inadequate information. The Tribunal does, however, concur with the point made by Mathews J in Re Secretary, Department of Social Security and Fomin (supra) in which the then President wrote:
"18. ... But this does not absolve the Australian authorities of moral responsibility for ensuring that the respondents, and others like them, have adequate financial resources to see them through the two year waiting period when they come into the country in the first place. In this case the authorities should have been alerted to the fact that the respondents had inadequate funds to last a family of three for two years. ...
19. The fairness of the two year waiting period is predicated upon the proposition that unsponsored migrants will have the means to support themselves and their dependants for two years after their arrival in Australia. If the authorities fail to ensure that this pre-condition is met, then the result will continue to be, as it is in this case, that skilled, motivated and deserving people suffer very significant hardship, and that serious strains are placed upon the resources of non-government charitable bodies."
44. In all the circumstances and for the reasons given above, the decision under review is affirmed in that Mr Allahwerdi has not experienced a substantial change in circumstances which is beyond his control within the meaning of subsection 739A(7) of the Act and therefore is ineligible to receive Special Benefit at this time.
I certify that the 19 preceding pages are a true copy of the reasons for the decision herein of:
Signed: .....................................................................................
Associate
Date/s of Hearing 13 October 1999
Date of Decision 17 January 2000
Representative for Applicant Self-represented
Representative for Respondent Ms C Collis, Departmental Advocate
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