Frenzel and Department of Family and Community Services [2000] AATA 779 (4 September 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/54

GENERAL ADMINISTRATIVE DIVISION )

Re ALFRED FRITZ FRENZEL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 4 September 2000

Place Hobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

Social security - special needs pension - overseas claim - Australian residence.

Social Security Act 1991 - s.772

REASONS FOR DECISION

4 September 2000 Ms A F Cunningham (Part-time Member)

1. The applicant has sought the review of a decision made by a Centrelink officer on 11 October 1999 declining payment to him of an Australian special needs age pension. The decision was affirmed by an authorised review officer on 29 October 1999 and by the Social Security Appeals Tribunal (SSAT) on 27 March 2000.

2. As the applicant currently resides in the Philippines, consent was given to the Tribunal determining the application on the basis of the written material before it. The material consisted of the 'T' documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.

3. The qualification provisions for payment of the special needs pension are contained in s.772 of the Social Security Act 1991 ("the Act") which provides as follows:

"772. A person is qualified for a special needs age pension if:

(a) the person has not resided in Australia at any time after 7 May 1973; and

(b) the person has turned:

(i) if the person is a woman - 60; or

(ii) if the person is a man - 65; and

(c) the person ceased to reside in Australia after the person had turned:

(i) if the person is a woman - 55; or

(ii) if the person is a man - 60; and

(d) the person has resided in Australia for a period that was, or for periods that in the aggregate were, not less than 30 years; and

(e) the person would:

(i) if the person had lodged a claim immediately before the person ceased to reside in Australia - have been qualified under section 25 of the 1947 Act to receive an age pension; or

(ii) if the person had not ceased to reside in Australia, were physically present in Australia and lodged a claim for an age pension - be qualified under section 25 of the 1947 Act to receive an age pension; and

(f) the person is, in the opinion of the Secretary, in special need of financial assistance."

4. The applicant's claim for a special needs pension was refused on the basis that he failed to meet the qualification provisions of sub-section (a) in that he was a resident of Australia after 7 May 1973. Whilst the applicant satisfies the provisions of sub-section (b) in that he has turned 65 having been born on 6 September 1929, the provisions of s.772 require that in order to qualify for a special needs age pension, a person must satisfy each and every provision of the section.

5. In his correspondence to the Tribunal the applicant refers to his desperate financial circumstances and his liability to support a wife and young child on very little money, as well as being indebted to friends for thousands of dollars which he claims to have no means of repaying. He believes that he should be entitled to a pension from the Australian government and seeks a review of the decision refusing his claim which was made on 29 September 1999.

6. All of the evidence contained in 'T' documents support a finding that the applicant did reside in Australia after 7 May 1973. The applicant migrated from Germany and became an Australian resident in 1957. The applicant states that he continued to be a resident of Australia until the time of his divorce when he returned to the Philippines. The decree nisi of dissolution of marriage which is contained in the 'T' documents at T3, was pronounced on 2 November 1994.

7. The applicant stated in a letter to Centrelink on 30 July 1999 that he worked with the Papua Electricity Commission in Papua New Guinea between 1973 and 1975 and "stayed on" until 1984 maintaining his home and residence in Brisbane, Queensland up until 1992. He further stated that he "had taken a second residence in the Philippines" in 1984.

8. In the applicant's claim for pension dated 14 September 1999 in answer to the question "Have you lived in Australia for the last 10 years?", the applicant responded "yes". There does not appear to be any dispute on the material before the Tribunal that the applicant was an Australian resident up until at least 1992. As the SSAT noted, there is corroborative evidence as to this from Mr. Don McKinnon, in letter dated 16 February 2000 addressed to the SSAT, in which he stated that the applicant had worked in Australia at various locations on a casual basis from 1988 to 1996. In his letter Mr. McKinnon also refers to the applicant's desperate financial circumstances and requests that the Tribunal favourably determine his application.

9. Whilst the Tribunal has considered the material supplied by the applicant in the 'T' documents regarding his very difficult circumstances, this Tribunal like the SSAT can only apply the evidence that is relevant to the qualifying provisions of the appropriate legislation as referred to above.

10. The evidence before Tribunal supports a finding that the applicant fails to meet sub-paragraph (a) of s.772 in that he has clearly resided in Australia after 7 May 1973. The Tribunal must accordingly affirm the decision under review on the basis that the applicant fails to meet the qualifying provisions of the legislation and dismiss the appeal.

I certify that the 10 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 Overseas Application - matter decided on the papers.

Date of Decision 4 September 2000