Karto and Karno and Secretary, Department of Family and Community Services [2003] AATA 37 (16 January 2003)

Last Updated: 5 March 2003

DECISION AND REASONS FOR DECISION [2003] AATA 37

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V02/1194 & V02/1183

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ROSE KARTO FAHIMA KARNO

Applicants

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mrs Joan Dwyer, Senior Member

Date 16 January 2003

Place Melbourne

Decision

The Tribunal affirms the decisions under review.

(Sgd) Joan Dwyer

Senior Member

SOCIAL SECURITY - carer allowance and health care card - qualification provision for carer allowance requires that care receiver be an "Australian resident" as defined in the Social Security Act 1991 - qualification for health care card requires that person be an "Australian resident" or a special category visa holder - decisions affirmed

Social Security Act 1991 ss 7(2), 954(1), 1061ZO(1) and (2),

Migration Act 1958 s32

REASONS FOR DECISION

16 January 2003

Mrs Joan Dwyer, Senior Member

1. These applications were heard together. Mrs Karto attended at the hearing and gave evidence with the assistance of an Arabic interpreter. Ms R. Bradley an advocate with Centrelink appeared for the Secretary, Department of Family and Community Services. The Tribunal had before it the documents ("the T documents") lodged in both matters pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, ("the AAT Act") and also the bundle of documents tendered by Mrs Karto during the hearing.

2. The issue in Mrs Karto's matter is whether she is entitled to carer allowance under s 954 of the Social Security Act 1991 ("the Act") in respect of the care she provides for her mother Mrs Karno. The issue in Mrs Karno's matter is whether she is entitled to a health care card under s 1061ZO of the Act. So far as relevant those sections provide for entitlement as follows:

954 Qualification for carer allowance--caring for a disabled adult

(1) A person is qualified for carer allowance for a disabled adult (the care receiver) if:

(a) the care receiver is an Australian resident; and

(b) the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

(c) the care receiver has been assessed and rated, and been given a score of not less than 30, under the Adult Disability Assessment Tool; and

(d) because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and

(e) * * * * *

(f) the person is an Australian resident.

1061ZO Qualification

(1) A person is qualified for a health care card on a day if this section applies to the person on that day.

(2) This section applies to a person on a day if, on that day:

(a) . . .

(b) in the case of a person other than a child--the person is:

(i) an Australian resident or a special category visa holder residing in Australia; and

(ii) in Australia; and

(d) the person satisfies the health care card income test. (emphasis added)

3. It is clear from those provisions that in order for Mrs Karto to receive carer allowance in respect of the care she provides to her mother, and for Mrs Karno to receive a health care card, Mrs Karno would have to be an "Australian resident" as defined in s7 of the Act or, for the health care card, "a special category visa holder". That is the only issue with which this hearing was concerned. The term "Australian resident" is defined in s 7 of the Act as follows:

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) a special category visa holder who is a protected SCV holder.

4. The T documents establish that Mrs Karto is an Australian citizen. She was granted citizenship on 27 February 1990 (T5 p41 matter V02/1194). Her mother Mrs Karno came to Australia on 28 July 1994 on a Visitor's Visa for a stay of six months (T6 p41 matter V02/1183). She subsequently applied for permanent residency and was granted a "Bridging Visa E".. Mrs Karto said that this visa has been renewed every three months. It is not clear from the T documents when the application to stay here permanently was first made. The most recent letter which was before the Tribunal advising Mrs Karno of her visa status was dated 25 March 2002 (T4 p30, matter V02/1183) and reads as follows:

I am writing to inform you that you have been granted a further Bridging Visa E as you have an unresolved case before the Department of Immigration and Multicultural Affairs and are awaiting a decision on your request to the Minister under Section 351 of the Migration Act 1958.

You have been granted full permission to work with the following conditions attached:

8505 - Reside at a Specified Address

8506 - Advise of change of address two day [sic] before the change

8207 - No Study

This visa will be in effect until 25/07/2002 and will be extended again until the finalisation of your immigration status under Section 351 of the Migration Act 1958.

5. Mrs Karto said that her mother had since then received a further similar letter granting an extension of that visa to 22 April 2003.

6. On that evidence I must find that Mrs Karno is not an Australian citizen. Nor is she the holder of a "permanent visa". That term is defined in s 30(1) of the Migration Act 1958 ("the Migration Act") as a visa "to remain indefinitely".

7. The only issue remaining for consideration is that arising under paragraph (iii) of the definition of an Australian citizen, namely whether Mrs Karno is "(iii) a special category visa holder who is a protected SCV holder".

8. A "special category visa" is defined in s 32 of the Migration Act as follows:

32 Special category visas

(1) There is a class of temporary visas to be known as special category visas.

(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:

(a) a non-citizen:

(i) who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and

(ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or

(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

(c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

9. Mrs Karno is not a New Zealand citizen. Nor is she a person declared by the Migration Regulations to be a person for whom a visa of another class would be inappropriate, or a person in a class of persons declared by the Regulations to be persons for whom a visa of another class would be inappropriate. The Regulations do not contain any such declaration, but in any event Mrs Karno is in fact the holder of a visa of another class. It is a Bridging Visa E.

10. As Mrs Karno is neither an "Australian resident" as defined in the Act, nor a "special category visa holder" as defined, I must affirm the decisions under review.

11. Mrs Karto gave evidence as to the financial burden on her of caring for her mother, who is incontinent, and who, she said, requires a special diet. She said that she and her husband live on Centrelink payments. Her husband is a disability support pensioner and she receives a wife's allowance. She said that she simply cannot afford to purchase the necessary incontinence aids for her mother. She had great difficulty in understanding that the Tribunal had no discretion in this matter and could not grant the carer allowance or the health care card, unless she and Mrs Karno were qualified for those payments under the Act.

12. I attempted to explain to Mrs Karto that the problem was that her mother's immigration status had still not been processed. The T documents included a letter from Senator Kay Patterson, Parliamentary Secretary to the Minister for Immigration And Multicultural Affairs, dated 8 May 2001 responding to a letter Mrs Karto had written asking the Minister to exercise his power under s 351 of the Migration Act to make a decision favourable to Mrs Karno. That letter concludes (T5 p45 matter V02/1194):

It is currently taking some time to finalise requests such as yours but please be assured that you will be contacted again when examination of your [sic] Mrs Karno's case has been completed.

Mrs Karto also lodged an earlier letter she had received from the Minister, dated 1 May 1998. It reads (A1):

Thank you for your letter of 1 april 1998 concerning Mrs Fahima Karno's request that I exercise my public interest power under section 351 of the Migration Act 1958.

I have asked that your letter of support be considered at the appropriate time.

When the matter has been settled Mrs Karno will be informed directly.

13. It seems from those letters that Mrs Karno and Mrs Karto have been waiting close to, or maybe even more than five years for a decision as to Mrs Karno's immigration status. It appears from the standard letter which was sent to Mrs Karno on 25 March 2002, that those dealing with the immigration matter may not realise that Mrs Karno is now aged 88 and has dementia. If her immigration status is not resolved soon it may be too late. The standard letter advised Mrs Karno that her visa grants her permission to work, but that she is not permitted to study. There is no prospect of her ever working or studying, and it seems very unlikely that she will ever leave Australia. It is unfortunate that Mrs Karto, who cares for her mother with great love and devotion, and who is incurring expenses she cannot afford does not have the same entitlement to carer allowance which she would have if her mother was an Australian citizen or the holder of the permanent visa.

14. I do suggest that Mrs Karno may like to forward a copy of these reasons to DIMA, so that the appropriate officer may consider whether it is possible to expedite the processing of Mrs Karno's immigration status matter in the hope that she may be granted a permanent visa. Her daughter, Mrs Karto could then qualify for carer allowance to enable her to have the income she needs to care for her mother.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: G. A. Carney

Personal Assistant

Date/s of Hearing 15 January 2003

Date of Decision 16 January 2003

Counsel for the Applicant Nil

Solicitor for the Applicant Nil - Self Represented

Departmental Advocate Ms R. Bradley