Shankley and Secretary, Department of Family and Community Services [2002] AATA 32 (18 January 2002)

Last Updated: 22 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 32

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/854

GENERAL ADMINISTRATIVE DIVISION )

Re AMELIA SHANKLEY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date 18 January 2002

Place Brisbane

Decision The Tribunal affirms the decision under review. This means Amelia Shankley's application for review is unsuccessful.

(Sgd) EK CHRISTIE

MEMBER

CATCHWORDS

SOCIAL SECURITY - eligibility for Special Benefit - whether applicant is an "Australian resident"

Social Security Act 1991: ss 7(1), (2), 729(1), (2)

Re Beigman and Secretary, Department of Social Security (1992) 29 ALD 332

Patman v Fletchers Fotographics Pty Ltd (1984) 6 IR 471

REASONS FOR DECISION

18 January 2002 Dr EK Christie, Member

1. This is an application by Amelia Shankley to review the decision of the Social Security Appeals Tribunal (the "SSAT") made on 22 August 2001 that Ms Shankley did not qualify for Special Benefit entitlements. The SSAT affirmed the decision of an Authorised Review Officer of the Department of Family and Community Services ("the Department") made on 4 June 2001.

2. In reaching its decision the SSAT concluded that:

"Until Ms Shankley is granted an approved category of visa that is defined within the [Social Security] Act and the Guide to Social Security Law, or becomes an Australian resident, she does not qualify for Special Benefit." (T1 Folio 9)

3. Both parties consented for the application for review to be decided on the papers and did not seek a further Directions Hearing with the presiding member to present new facts or submissions following the SSAT hearing. Accordingly, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 - the "T" documents.

ISSUES BEFORE THE TRIBUNAL

4. The only issues for the Tribunal to decide were:

(a) whether Ms Shankley qualified for Special Benefit; in turn this was dependent on -

(b) whether Ms Shankley came within the statutory meaning of "Australian resident" as defined in the Social Security Act 1991.

FACTS

5. The general facts were not in dispute and may be stated briefly.

6. Ms Shankley is a British citizen and was born in England on 18 June 1972 and last arrived in Australia on 23 December 1997.

7. Ms Shankley made an application to remain permanently in Australia on 14 July 2000 and was granted a Bridging Visa, Class WC subclass 030 on 29 May 2001 (T9 Folio 65).

8. Ms Shankley has a two year old daughter who is an Australian citizen; her daughter receives a Special Benefit payment. Ms Shankley's partner, the father of her child, is an Australian citizen.

9. However, Ms Shankley has now separated from her partner following a difficult time in which she had a stormy and often abusive relationship with her partner.

10. An Apprehended Violence Order has been issued (17 July 2001) against her ex-partner in which the protected persons listed are Ms Shankley, her child and Ms Shankley's parents (mother and step-father).

LEGAL FRAMEWORK

11. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Social Security Act 1991 ("the Act").

12. Section 729 of the Act prescribes the requirements that must be met to qualify for Special Benefit.

"Qualification for special benefit

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.

Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

729.(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a) no social security pension is payable to the person during the period; and

(b) no other social security benefit is payable to the person for the period; and

(bb) the person is not disqualified for a benefit PP (partnered) for the period solely because of the operation of section 500C (unemployment due to industrial action); and

(c) the person is not disqualified for a newstart allowance for the period because of the operation of one or more of the following:

(i) .....

(ii) section 596 (unemployment due to industrial action);

(ii) section 597 (move to area of lower employment prospects); and

(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; and

(f) the person:

(i) is an Australian resident; or

(v) becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph.

(fa) the person is in Australia throughout the period; and

729.(5) For the purposes of paragraph (2)(fa), if:

(a) a person is temporarily absent from Australia; and

(b) the Secretary is satisfied that the person's absence is due to exceptional circumstances."

13. In Ms Shankley's circumstances the central issue in dispute for her being qualified for Special Benefit is whether she satisfies the statutory requirements for the meaning of an "Australian resident" [s.729(2)(f)(i)] or, alternatively, the holder of a visa that is in a specified class of visa as determined by the Minister [s.729(2)(f)(v)].

14. Section 7(2) of the Act defines the meaning of an "Australian resident" and, as relevant, states:

"7. (2) An Australian resident is a person who:

(a) resides in Australia; and

(b) is one of the following:

(i) an Australian citizen;

(ii) the holder of a permanent visa;

(iii) the holder of a special category visa who is likely to remain permanently in Australia;"

15. In Ms Shankley's case, it is not in dispute that she is not an Australian citizen nor the holder of a permanent visa (see paragraph 7).

16. To satisfy the statutory requirements for Australian residency [s.7(2)(iii)] or, alternatively, the requirements to qualify for Special Benefit [s.729(2)(f)(i) or (v)], the bridging visa held by Ms Shankley (see paragraph 7) would have to come within the meaning of a "special category visa" or be a specified subclass visa as determined by the Minister.

17. The Guide to Social Security Law defines the types of visas where holders may qualify for Special Benefit at Section 3.7.1.10.

CONTENTIONS OF THE PARTIES

18. Ms Shankley's application for review is founded on special, even exceptional, circumstances affecting her financial stability and personal well-being.

19. Ms Shankley's financial predicament is precarious. Employment through relief teaching at a local school ended in September 2001. Concerted efforts by her to find work in the region since then have failed. Ms Shankley states that she has "no money whatsoever" and "(her) mother cannot support (her) and I cannot expect her to, as she is a pensioner" (T1 Folio 1). Ms Shankley's reliance on her mother and stepfather for financial support has taxed her parent's relationship. Moreover, Ms Shankley's ex-partner is in arrears with his maintenance payments for their child. Ms Shankley's primary source of income is her daughter's Special Benefit. Ms Shankley no longer has her own transport which is essential for taking up employment opportunities in the coastal region where she lives.

20. Notwithstanding the need for an Apprehended Violence Order against her ex-partner, Ms Shankley is committed to staying in the region in order to facilitate access arrangements for her ex-partner.

21. Ms Shankley's financial instability and personal well-being predicament have been exacerbated by delays in the processing of her permanent visa application by the Department of Immigration and Multicultural Affairs (DIMA). In addition, DIMA, has failed to respond to her request for a change in visa status (letter dated 30 July 2001, T1 Folio 1).

22. The respondent Department submitted that Ms Shankley is not an Australian citizen as the Bridging Visa she held did not satisfy the statutory requirements for the meaning of an "Australian resident".

23. The Bridging Visa, as held by Ms Shankley, was issued in the case of her temporary visa expiring, or the likelihood of it expiring, before a decision had been made on her application for another visa - namely an application for permanent residence (see T9 Folio 65).

24. The Respondent Department submitted that Ms Shankley's Bridging Visa was not a Special Category Visa as it did not fall within the prescribed class and subclass set by statute.

25. Furthermore, the Respondent Department submitted that as the Minister had not made any determinations regarding Bridging Visas for the purposes of s.729(2)(f) of the Act. Consequently, paragraph (v) of the Act would not apply in Ms Shankley's case.

26. In conclusion, the Respondent Department contended that Ms Shankley's factual case did not satisfy either of the statutory requirements for the meaning of an "Australian resident" [s.7(2); s.729(1)(2)] and consequently, did not qualify for Special Benefit entitlement.

CONCLUSION AND REASONS FOR DECISION

27. Ms Shankley's basis for qualification for Special Benefit are founded on her financial instability as well as significant constraints on her personal well-being for herself and her child. These constraints might be described as "exceptional circumstances". However, for the Tribunal to consider them in its decision-making process in this application for review, they must be connected to a question of law arising under the Act and the meaning of "Australian resident".

28. Subsection 729(2) of the Act refers to a "discretion" that can be applied in deciding whether a Special Benefit should be paid. However, the requirements for statutory interpretation necessitates the reading of the entire subsection 729(2), as well as the subsections that precede and follow s.729(2) in order to give effect to such discretion: See Patman v Fletcher's Fotographics (1984) 6 IR 471.

29. Accordingly, the Tribunal concludes that any application of discretion for "exceptional circumstances" under the Act only applies to the question of residency where the person is temporarily absent from Australia [see s.729(2)(fa); s.729(5)(a)(b)]. Clearly, absence from Australia is not an issue in this application for review. As a result, any question of applying discretion because of exceptional circumstances in Ms Shankley's case is not a relevant consideration for the Tribunal's decision-making process. Consequently, in Ms Shankley's case, discretion to grant Special Benefit can only apply if she satisfies the statutory requirements for either falling within the definition of "Australian resident" or is a holder of a visa that is in a class of visas determined by the Minister.

30. Whilst this conclusion may seem harsh, it needs to be considered against the statutory requirements that prescribe the basis for the Tribunal's decision-making power. Quite simply, the Tribunal cannot operate outside the legal boundaries prescribed by the statutory provisions for the meaning of "Australian resident" in order to qualify for Special Benefit. Ms Shankley to succeed must satisfy the requirements prescribed in s.729(2)(f)(i) or (v) or s.7(2)(b)(iii) of the Act.

31. After careful consideration of all the material before the Tribunal, the Tribunal concludes that Ms Shankley does not qualify for payment of Special Benefit as she does not satisfy the requirements prescribed by either s.729(2)(f)(i) or (v) or s.7(2)(b)(iii) of the Act.

32. The Bridging Visa that Ms Shankley holds is not a special category of visa that is defined within the Act and the Guide to Social Security Law - nor does she satisfy the meaning of "Australian resident" as defined in the Act.

33. In addition, Ms Shankley's Bridging Visa does not fall within the class of visas as determined by the Minister.

34. For all of the above reasons the Tribunal has no option other than to affirm the decision under review. This means Ms Shankley's application for review is unsuccessful.

35. The Tribunal notes that the SSAT has expressed some concern at the delays taken by DIMA to process her application for permanent residency made on 14 July 2000 (T2 Folio 5 paragraph 20; T2 Folio 6 paragraph 26). This situation has arisen in other cases heard by the Tribunal. For example, the Full Tribunal (O'Connor J, Breen DP and Gibson M) in Beigman and Secretary, Department of Social Security (1992) 29 ALD 332 stated:

"A system which precludes persons from income support payments while their migration status is determined must, in order not to operate harshly in respect of those persons and place an undue burden on charitable institutions, rely on a process which determines that status with speed."

36. The Tribunal makes the observation that given Ms Shankley's precarious financial situation and the adverse impacts on her family, that her application for permanent residency be processed in accordance with the Tribunal's comments in Beigman's case.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member.

Signed: Denise Burton

Secretary

Date/s of Hearing Hearing on the papers

Date of Decision 18 January 2002

Applicant Ms A Shankley

Respondent Mr T Ffrench, Departmental Advocate