Hussaini and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 94 (14 February 2011)

Last Updated: 15 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3936-3938

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DORNISA HUSSAINI ROKHANA HUSSAINI SHAHNAZ HUSSAINI

Applicants

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Ms Naida Isenberg, Senior Member

Date 14 February 2011

Place Sydney

Decision

The decision under review is set aside and in substitution thereof the Tribunal finds that the Applicants experienced a substantial change in circumstances such that the special benefit newly arrived resident's waiting period does not apply.

....................sgd..........................
Ms Naida Isenberg
Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits – special benefit – newly arrived resident’s waiting period – irrevocably committed to migration process – time at which change in circumstances occurs - decision under review set aside

Social Security Act 1991 (Cth)

Social Security (Class of Visas - Qualifications for Special Benefit) Determination 2009

Administrative Appeals Tribunal Act 1975 (Cth)

Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481

Jaydev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 332

Re Secretary, Department of Social Security and Fomin (unreported, AAT, President Matthews, No S97/422, 12 March 1998)

Re Chelechkov and Department of Social Security [1998] AATA 94

Secretary, Department of Social Security v Cooper (1990) 26 FCR 13

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259

Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82

REASONS FOR DECISION

14 February 2011

Ms Naida Isenberg, Senior Member

BACKGROUND

1. The Applicants, Mrs Dornisa Hussaini and her daughters Rokhsana and Shahnaz, seek review of the decisions of the Social Security Appeals Tribunal dated 19 August 2010, affirming Centrelink’s decisions to reject their claims for special benefit.
2. The Applicants arrived in Australia with their teenage son/brother on 22 May 2010 on sub-class 309 visas as sponsored family members. Sub-class visas are temporary pending the determination of an application for permanent residence and require the sponsor to support the visa holders for a period of two years. The Applicants are subject to a newly arrived resident’s waiting period which will expire on 19 May 2012.
3. The Applicants all claimed special benefit on 24 May 2010. Their claims were rejected because of the newly arrived resident’s waiting period. The decisions to reject their claim were affirmed by an authorised review officer. Their applications to the Social Security Appeals Tribunal were also unsuccessful.

ISSUE

4. The issue to be determined by this Tribunal is whether the Applicants are qualified to receive special benefit.

LEGISLATION

5. As indicated by the Respondent the relevant legislation in this matter is ss 739A to 739C of the Social Security Act 1991 (Cth) (the Act) which deal with qualifications for and disqualifications from special benefit. Section 739A provides that special benefit may not be payable if a person is subject to a Newly Arrived Resident’s Waiting Period (NARWP):

739A Newly arrived resident’s waiting period

(1) 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

...

(e) becomes the holder of a visa that is in a class of visas determined by the Minister, by legislative instrument, for the purposes of this paragraph;

is subject to a new arrived resident’s waiting period.

...

(5) If:

(a) a person is subject to a new arrived resident’s waiting period; and

(b) neither subsection (3) nor (4) apply to the person;

the waiting period starts on the day on which the person:

(c) first entered Australia; or

(d) becomes the holder of a permanent visa;

Whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

...

(7) 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.

6. Pursuant to section 739C establishes the Secretary may set guidelines for the exercise of the Secretary’s powers under s 739A. The applicable guideline can be found at s 3.7.2.20 of the Guide to Social Security Law (the Guide) which sets out factors to be considered in respect of newly arrived residents:

Newly arrived residents are required to have attempted to obtain support from all possible alternative sources before being granted SpB. Before SpB can be paid, the delegate must be satisfied that:

• the change in circumstances is substantial and beyond the person's control, AND
• they are in financial hardship and are able to satisfy the available funds test, AND
• they have attempted to obtain a sufficient livelihood. For example, they have attempted to obtain support from their sponsor (1.1.S.290), or have attempted to obtain employment, or if sponsored by a business, have attempted to work for their sponsor, AND
• their available funds or support options were depleted because of the change in circumstances.
  

EVIDENCE

7. The Tribunal had before it the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and written statements by the Applicants as well as Baktawar Hussaini, Mohommad Raza Hussaini and Ebrar Hussaini. The Tribunal also heard oral evidence from the Applicants and Ebrar.
8. Mrs Hussaini was born in Afghanistan. She married in 1973 and had seven children. Mrs Hussaini and her family are Hazari, a group that has been subject to discrimination in Afghanistan. Mrs Hussaini’s brother-in-law was killed because of his political activities and shortly afterwards her husband died, probably of natural causes. A son, aged 11, was killed by the Taliban.
9. Ebrar Hussaini, the son of Mrs Hussaini, and brother of Rokhsana and Shahnaz, left Afghanistan and arrived in Australia via Pakistan. At the time of his arrival by boat at Ashmore Reef he was 16 or 18 years. Ebrar was detained in a detention centre in 2001 before he was granted a visa and released. He was the recipient of special benefit for about four weeks before he obtained work, and for another short period a few months later, but otherwise had regular employment until 2010. Available information is to the effect that he earned between $23,484 and $41,134 per annum in the years 2005 to 2009. Since 2002 he has been sending his family approximately $10,000 per annum to support them. Ebrar was their sole means of financial support.
10. Shortly after Ebrar left Afghanistan and after the death of Mrs Hussaini’s 11 year old son, Mrs Hussaini and her daughters Rokhsana and Shahnaz and another son fled to Pakistan where they remained, illegally, until 2010. The family lived in old houses, suffered evictions and discrimination, the children received limited education and they feared the escalating violence.
11. Ebrar was granted permanent residence in Australia in May 2006. He returned to Pakistan and married Baktawar who joined his mother’s household. He initiated the process for his wife, mother, two sisters and brother to join him in Australia in January 2008. His plan was that he would rent a house for the family, arrange English classes, and help them look for work.
12. In addition to supporting his family in Pakistan, Ebrar managed to save $30,000 by living very frugally and working up to 15 hours a day. Ebrar had worked usually in temporary or casual work prior to October 2009. In November 2009 a friend offered him the opportunity to invest in a wholesale fruit and vegetable business in Perth, which the friend led him to believe, was going well. Without any prior experience in that type of business, without due diligence and seemingly without financial advice, he invested $30,000 in this business. While there was evidence of the transfer of funds from his account into the business account, the agreement, between the friends was otherwise undocumented. He said it was his intention to invest the money, ensure he had a permanent job for himself, and to have a business in which he could employ his family members who, because of their lack of English skills, would be unlikely to get employment elsewhere. The business was not a success and his investment was lost in March 2010 when the business’ lease expired without the investors being able to sell the business. Ebrar found himself unemployed and without savings. Ebrar returned to Sydney and applied for, and was granted, Newstart Allowance.
13. In April 2010 the Applicants’ application to enter Australia was granted and they immediately arranged to travel to Australia. They arrived in Australia without being aware that Ebrar was unemployed and had no savings. They only learnt of Ebrar’s financial circumstances when, after arrival, they were not taken to Ebrar’s house but were taken to stay at the home of one of Ebrar’s friends. For about two months they lived in a succession of his friends’ homes. They spent long periods in parks during the day so as to limit the burden on Ebrar’s friends.
14. Ebrar’s evidence was that he had not told his family of his loss because he did not want to worry them. He considered they had no option but to come because they would be killed if they remained in Pakistan. All the Applicants gave evidence that they had come to Australia intending to live with Ebrar and that he would support them, just as he had done while they were living in Pakistan. Both Rokhsana and Shahnaz had looked for jobs, without success. Neither had previous work experience except for tending animals when they lived in Afghanistan. All also said they would have come to Australia whether or not Ebrar was able to support them because of the danger in Pakistan, especially from the Taliban.
15. Mrs Hussaini’s claim for special benefit, lodged on 31 May 2010, contained the following questions and answers:
    1. Please describe the reason why you are claiming Special Benefit. Please include any recent changes in your circumstances?

We have no money to rent a house and no money for food and clothing.

2. Please describe in detail why you believe you are in hardship and have no other means of support?

Because we are refugee and not have job and no place for living. [T5-39]

16. As noted in paragraph [13], the Applicants lived temporarily in the homes of friends and supporters for the first two months after they arrived. The conditions were crowded.
17. In about June 2010 Ebrar was able to obtain employment and he was able to rent a home where the family now lives. His employment, while paying about $1,000 per week, is temporary and casual. He requires the use of a car to get to and from work. He has had two car accidents which have caused him expense. The Applicants have no furniture and sought assistance from local charities, without success. Ebrar’s wife is pregnant with the child due in March 2011. Mrs Hussaini’s younger son will start school this year which will entail the purchase of uniforms and the payment of associated expenses. Family members have health problems which their present financial circumstances prevent being treated properly. The Applicants would benefit from English classes, as they had planned, which they cannot now afford.

CONSIDERATION

18. Centrelink accepted that the Applicants meet the general qualification criteria for special benefit as no other social security pension or benefit is payable to them, given their lack of English language skills and employment history. In fact, the class of the visa is specified in Social Security (Class of Visas - Qualifications for Special Benefit) Determination 2009. However Centrelink rejected the claim for special benefit because it was considered that the Applicants had not experienced a substantial change of circumstances since arriving in Australia, and therefore they were not exempt from the two year waiting period.
19. Both parties referred me to Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481 (Secara) a unanimous decision of the Full Federal Court. There, at p 493, Mansfield J stated:

The two elements which the events or matters constituting the changed circumstances must satisfy are first that the events or matters must be “substantial”, that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon, and secondly that the events or matters be beyond the person's control.

20. The Applicants contend that there was a substantial change of circumstances on 3 bases: the loss of Ebrar’s savings; Ebrar’s loss of employment; and their loss of work opportunity in Ebrar’s business. The support that the Applicants had received from Ebrar for the previous decade was no longer available to them and they did not become aware of this until they arrived in Australia. I accept that the change in their circumstances was substantial.
21. As to whether the events were beyond the Applicants’ control, the Respondent contended that the loss of the funds which would have supported them was not directly responsible for their poverty in Australia. Rather, that it was a result of the decision to continue with their plans to migrate to Australia, irrespective of whether funds were available or not. To that extent, the Respondent argued that the Applicants’ impoverished circumstances were not beyond their control.
22. The Respondent referred me to the recent matter of Jaydev and Secretary, Department of Families, Housing, Community Services and indigenous Affairs [2010] AATA 332, where SM Bell at paras [26] and [27], referred to Re Secretary, Department of Social Security and Fomin (unreported, AAT, President Matthews, No S97/422, 12 March 1998) (Fomin) in which her Honour stated that in situations where "... the immediate cause of the depletion of the [migrants'] funds was the fact that they were inadequate in the first place ... [o]ne must then go back to ask whether the inadequacy of the funds was itself beyond their control." Matthews J commented further in Fomin:

The respondents ... were very committed to emigrating to Australia. To this end they were prepared to undergo significant sacrifice and hardship. The long-term benefits of living in Australia were clearly perceived as outweighing the short-term difficulties. No doubt life in the short-term has been harsher, and certainly more expensive, than the respondents had anticipated or hoped. But it was a risk they were prepared to take. This being the case, I do not think that they have suffered a substantial change in circumstances beyond their control.

23. In the current matter though, the Applicants, while themselves impecunious, had a reasonable expectation that Ebrar would continue to support them, just as he had done for many years. I suspect, although there was no evidence to this effect, that as Ebrar was the eldest son, there was an expectation that he would provide for his family.
24. The Respondent also submitted that the timing of the change of circumstances is also a relevant consideration. It is a question of fact as to when the change in the Applicants’ circumstances occurred. On the evidence Ebrar’s business investment and the Applicants’ source of support had vanished in March 2010, that is, shortly before they had left Pakistan. The Applicants’ solicitor submitted that, by that time, the Applicants were committed to the migration process.
25. In that regard the Applicant’s solicitor referred me to Re Chelechkov and Department of Social Security [1998] AATA 94 (18 February 1998) (Chelechkov) where the Tribunal considered at para [28] that it was inappropriate to limit the operation of ss (7) of the Act to changes which occur after a migrant arrives in Australia:

Each case needs to be determined according to its own facts. It will no doubt be unusual for a change in circumstances which occurs before a migrant leaves his or her country of origin to fall within subsection (7). This is because subsection (7) will only apply to changes which are directly responsible for the migrant's state of poverty in Australia ...

26. The Tribunal in Chelechkov at para [17] referred to the Full Federal Court’s decision in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 (Cooper). In Cooper the applicants were already irrevocably committed to the migration process by the time they realised that funds were not available. With regard to the decision in Cooper the Tribunal in Chelechkov noted at para [30] that:

It will be a question of fact in each case as to whether, at the time of the change relied upon under subsection (7), the applicant retained a realistic choice as to whether to continue with the migration or not. The further back in time one goes between the arrival in Australia and the event which is relied upon as constituting the change, the less likely it will be that the person was irrevocably committed to the migration process. If he/she had not reached that stage then it could not be said that the person's poverty in Australia was attributable to the change, but rather to the decision to migrate notwithstanding the change.

27. Although Ebrar’s savings had vanished by March 2010 the Applicants did not become aware of the change in circumstances until they had arrived in Australia. They travelled to Australia confident that Ebrar would continue to support them. It was not until they had arrived that they became aware of the recent changes to Ebrar's financial position and his consequent inability to support them.
28. I accept that the Applicants left their country of origin more than 10 years ago and lived illegally in Pakistan. I found the evidence as to their circumstances in Pakistan to be somewhat confusing; for example, while there was general evidence about the Taliban and that they feared for their lives, the sisters’ gave evidence of being able to travel, unescorted, through the streets in order to attend, albeit for a short time, elementary English lessons.
29. Nonetheless, I accept that it was their long-term plan to join Ebrar in Australia as soon as visas could be arranged and that it was from that time, in my view, that they were irretrievably committed to following Ebrar to Australia. Ebrar represented their only means of support, and this was acknowledged in the terms of their visas.
30. I also accept that it cannot be said that the Applicants decided to migrate notwithstanding the change in circumstances, because, at the time they travelled, on the evidence, they were unaware of it. The Full Federal Court in Secara at pp 488 and 489 stated:

There is no word or words in s739A(7) which either expressly or by inference limit the time at which the change in circumstance may occur. I do not see any reason in logic or in fairness why a temporal limitation by reference to the person's arrival in Australia should be specified. ...

In my judgment, the point at which in a sensible and realistic way it can be said that the person irrevocably committed to migrating to Australia marks one point in time from which s739A(7) may operate. Earlier than that point as Mathews J pointed out, any financial adversity in Australia due to a change of circumstances may well not be attributable to the change but due to the decision to migrate notwithstanding the change. ...

31. I observe that s 3.7.2.20 of the Guide requires that newly arrived residents are required to have attempted to obtain support from all possible alternative sources before being granted special benefit. Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at pp 639 to 645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at p 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 at p 86. I doubt that there is any legislative basis for this requirement, and, it seems to me, unreasonable that Australian charities should be asked to support incoming migrants whose circumstances have changed, such that they are unable to support themselves, before Centrelink might consider entitlement to special benefit. Nonetheless, in this matter there was evidence that the Applicants had been living off the generosity of Ebrar’s friends and that they had sought charity assistance, without success.
32. In summary, I find that the Applicants suffered a substantial change in circumstances beyond their control, such that the provisions of s 739A(1) and (5) do not apply. Accordingly, the Applicants are not subject to a 104 week special benefit newly arrived resident's waiting period.

DECSION
The decision under review is set aside and in substitution thereof the Tribunal finds that the Applicants experienced a substantial change in circumstances such that the special benefit newly arrived resident's waiting period does not apply.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member.

Signed: .....sgd.............................................................................

Associate

Date/s of Hearing 27 January 2011

Date of Decision February 2011

Counsel for the Applicants

Solicitor for the Applicants Mr S Hodges

Counsel for the Respondent
Solicitor for the Respondent Ms Horan