SOCIAL SECURITY ACT 1991 - SECT 7 Australian residence definitions

SOCIAL SECURITY ACT 1991 - SECT 7

  (1)   In this Act, unless the contrary intention appears:

"Australian resident" has the meaning given by subsection   (2).

"former refugee" means a person who was a refugee but does not include a person who ceased to be a refugee because his or her visa or entry permit (as the case may be) was cancelled.

"holder" , in relation to a visa, has the same meaning as in the Migration Act 1958 .

"new PRC (temporary) entry permit" means an entry permit within class 437 of Division   2.6--Group 2.6 in Part   2 of Schedule   1 to the Migration (1993) Regulations as in force before 1   September 1994.

"old PRC (temporary) entry permit" means a PRC (temporary) entry permit within the meaning of the Migration (1989) Regulations as in force before 1   February 1993.

"permanent visa" , special category visa and visa have the same meaning as in the Migration Act 1958 .

"protected SCV holder" has the meaning given by subsections   (2A), (2B), (2C) and (2D).

"qualifying Australian residence" has the meaning given by subsection   (5).

"qualifying residence exemption" has the meaning given in subsections   (6) and (6AA).

  (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.

Note:   For holder and permanent visa see subsection   (1).

  (2A)   A person is a protected SCV holder if:

  (a)   the person was in Australia on 26   February 2001, and was a special category visa holder on that day; or

  (b)   the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26   February 2001, and returned to Australia after that day.

  (2B)   A person is a protected SCV holder if the person:

  (a)   was residing in Australia on 26   February 2001; and

  (b)   was temporarily absent from Australia on 26   February 2001; and

  (c)   was a special category visa holder immediately before the beginning of the temporary absence; and

  (d)   was receiving a social security payment on 26   February 2001; and

  (e)   returned to Australia before the later of the following:

  (i)   the end of the period of 26 weeks beginning on 26   February 2001;

  (ii)   if the Secretary extended the person's portability period for the payment under section   1218C--the end of the extended period.

  (2C)   A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26   February 2001 is a protected SCV holder at a particular time if:

  (a)   the time is during the period of 3 years beginning on 26   February 2001; or

  (b)   the time is after the end of that period, and either:

  (i)   a determination under subsection   (2E) is in force in respect of the person; or

  (ii)   the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

  (2D)   A person who, on 26   February 2001:

  (a)   was residing in Australia; and

  (b)   was temporarily absent from Australia; and

  (c)   was not receiving a social security payment;

is a protected SCV holder at a particular time if:

  (d)   the time is during the period of 12 months beginning on 26   February 2001; or

  (e)   the time is after the end of that period, and either:

  (i)   at that time, a determination under subsection   (2E) is in force in respect of the person; or

  (ii)   the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

  (2E)   A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:

  (a)   the person was residing in Australia on 26   February 2001, but was temporarily absent from Australia on that day; or

  (b)   the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26   February 2001.

  (2F)   If a person makes an application under subsection   (2E), the Secretary must make the determination if:

  (a)   the Secretary is satisfied that paragraph   (2E)(a) or (2E)(b) applies to the person; and

  (b)   the application was made within whichever of the following periods is applicable:

  (i)   if paragraph   (2E)(a) applies to the person--the period of 12 months beginning on 26   February 2001;

  (ii)   if paragraph   (2E)(b) applies to the person--the period of 3 years beginning on 26   February 2001.

The Secretary must give a copy of the determination to the person.

  (2G)   The Secretary must make a determination under this subsection in respect of a person if the person is a protected SCV holder because of subsection   (2B). If the Secretary is required to make such a determination:

  (a)   the determination must state that the person was residing in Australia on 26   February 2001, but was temporarily absent from Australia on that day; and

  (b)   the determination must be made within the period of 6 months of the person's return to Australia; and

  (c)   a copy of the determination must be given to the person.

  (3)   In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

  (a)   the nature of the accommodation used by the person in Australia; and

  (b)   the nature and extent of the family relationships the person has in Australia; and

  (c)   the nature and extent of the person's employment, business or financial ties with Australia; and

  (d)   the nature and extent of the person's assets located in Australia; and

  (e)   the frequency and duration of the person's travel outside Australia; and

  (f)   any other matter relevant to determining whether the person intends to remain permanently in Australia.

  (3A)   For the purposes of determining, under subsections   (2A) to (2D), whether a person is a protected SCV holder, Australia is taken, at all relevant times, to have included Norfolk Island.

  (4)   For the purposes of:

  (a)   Part   2.2 (age pension); and

  (b)   Part   2.3 (disability support pension);

residence of a claimant in an external Territory is taken to be residence in Australia.

  (4AA)   Whether residence in a particular place is residence in an external territory for the purposes of subsection   (4) is to be determined as at the time of residence.

  (4B)   For the purposes of a newly arrived resident's waiting period, the day on which a permanent visa is granted to a person or a person becomes the holder of a permanent visa is:

  (a)   if an initial decision maker decides to grant a visa to the person--that day; or

  (b)   if:

  (i)   an initial decision maker decides not to grant a visa to the person; and

  (ii)   on a review of the decision referred to in subparagraph   (i), that decision is set aside (however described) and a visa is granted to the person;

    the day on which the initial decision maker decided not to grant the visa to the person.

  (5)   A person has 10 years qualifying Australian residence if and only if:

  (a)   the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

  (b)   the person has been an Australian resident during more than one period and:

  (i)   at least one of those periods is 5 years or more; and

  (ii)   the aggregate of those periods exceeds 10 years.

  (6)   A person has a qualifying residence exemption for a social security pension (other than carer payment) or a social security benefit (other than youth allowance, austudy payment, jobseeker payment or special benefit) if, and only if, the person:

  (a)   resides in Australia; and

  (b)   is either:

  (i)   a refugee; or

  (ii)   a former refugee.

  (6AA)   A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, carer allowance, a mobility allowance, a seniors health card or a health care card if, and only if, the person:

  (b)   except in relation to pension PP (single), benefit PP (partnered), youth allowance, austudy payment, jobseeker payment, carer payment, carer allowance, mobility allowance, a seniors health card or a health care card--was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or

  (f)   in any case--holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.

  (6B)   A person is a refugee for the purposes of this section if the person:

  (a)   is taken, under the Migration Reform (Transitional Provisions) Regulations, to be the holder of a transitional (permanent) visa because the person was, immediately before 1   September 1994, the holder of:

  (i)   a visa or entry permit that fell within Division   1.3--Group 1.3 (Permanent resident (refugee and humanitarian) (offshore)) in Part   1 of Schedule   1 to the Migration (1993) Regulations as then in force; or

  (ii)   a visa or entry permit that fell within Division   1.5--Group 1.5 (Permanent resident (refugee and humanitarian) (on - shore)) in Part   1 of Schedule   1 to the Migration (1993) Regulations as then in force; or

  (b)   was, immediately before 1   February 1993, the holder of a visa or entry permit of a class prescribed under the Migration Regulations as then in force that corresponds to a visa or entry permit referred to in subparagraph   (a)(i) or (ii); or

  (c)   is the holder of:

  (i)   a permanent protection visa; or

  (ii)   a permanent visa of a class referred to in the Table at the end of this subsection; or

  (iii)   a permanent visa of a class referred to in a declaration of the Minister under section   25 that is in force.

  (6D)   For the purposes of subsection   (6AA):

"family member" , in relation to a person, means:

  (a)   a partner of the person; or

  (b)   a dependent child of the person; or

  (c)   another person who, in the opinion of the Secretary, should be treated for the purposes of this definition as a person described in paragraph   (a) or (b).

  (6E)   The Minister may, by legislative instrument:

  (a)   set guidelines for the exercise of the Secretary's power under paragraph   (6D)(c); and

  (b)   revoke or vary those guidelines.

  (7)   For the purposes of subparagraphs   540(1)(d)(ii), 540BA(f)(ii) and 593(1)(g)(ii), (1D)(b)(ii) and (5)(e)(ii) and paragraph   666(1)(g), a person is exempt from the residence requirement in respect of a period if:

  (a)   throughout the period, the person was the holder of a special category visa; and

  (b)   immediately before the period commenced, the person had been residing in Australia for a continuous period of at least 10 years, being a period commencing on or after 26   February 2001;

unless the person's exemption from the residence requirement in respect of the period would result in the person:

  (c)   receiving jobseeker payment or youth allowance for a continuous period of more than 6 months because of this subsection; or

  (d)   receiving jobseeker payment or youth allowance for more than one non - continuous period because of this subsection; or

  (e)   receiving more than one of that payment and that allowance because of this subsection.